Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock, MP)Family Law Amendment (Shared Parental Responsibility) Bill 2005
GENERAL OUTLINE
This Bill amends the Family Law Act 1975 (the Act) to implement a significant number of the recommendations of the report of the House of Representatives Standing Committee on Family and Community Affairs (the FCAC) inquiry into child custody arrangements in the event of family separation. The report, entitled Every Picture Tells a Story, was released on 29 December 2003 (the FCAC Report). The Bill also implements most of the recommendations made by the House of Representatives Standing Committee on Legal and Constitutional Affairs (the LACA Committee) in its report on the exposure draft of the Bill (the LACA Report).
The amendments are part of the Government's bold new reform agenda in family law. The legislation underpins the package of measures announced in the 2005 Budget. The cost of the package is estimated at $397 million over four years. These initiatives represent a generational change in family law and aim to bring about a cultural shift in how family separation is managed: away from litigation and towards cooperative parenting.
Schedule 1
The amendments in Schedule 1 recognise the need for a cooperative approach to parenting. The amendments promote the object of ensuring that children have a right to have a meaningful relationship with both their parents and that parents continue to share responsibility for their children after they separate. The amendments also reinforce the primary importance of the object of ensuring that children live in an environment where they are safe from violence or abuse.
The amendments in Schedule 1 also advance the Government's long standing policy of encouraging people to take responsibility for resolving disputes themselves, in a non adversarial manner.
Schedule 2
Schedule 2 contains a range of amendments to strengthen the existing enforcement regime in the Act. Breaches of court orders are a major source of conflict and distress to all parties involved. The amendments provide the courts with a greater range of options to better enforce parenting orders. This is necessary to ensure that one of the main objects of Part VII of the Act is fulfilled and that children are able to have a meaningful relationship with both parents. In addition, the amendments repeal the existing Division 13A of Part VII of the Act and replace that Division with clearer and more accessible provisions that will make the whole Division easier to understand.
Schedule 3
The amendments in Schedule 3 provide for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best interests of the child by encouraging parents to focus on their parenting responsibilities.
Schedule 4
Schedule 4 contains a range of amendments to the counselling and dispute resolution provisions in the Act to ensure the legislation supports the Government's policy of ensuring that separating and divorcing parents have access to quality family counselling and dispute resolution services so that they can attempt to resolve their disputes outside of the court. The amendments also provide the ability to protect the names and symbols of certain services funded by the Government to provide assistance and support to people in the family law system (such as the Family Relationship Centres). This protection will enhance the level of protection for these names and symbols in order to ensure that the public is not mislead.
Schedule 5
The amendments in Schedule 5 implement a number of the recommendations made by the Family Law Council in its report, Pathways for Children: A review of children's representation in family law, which examines the role and basis of appointment of independent children's lawyers. The amendments aim to clarify and strengthen the role of the independent children's lawyer for children, parties and lawyers acting in the role.
Schedule 6
Schedule 6 repeals and replaces the existing Division 11 of Part VII. This Division deals with the relationship between orders made under the Act that provide for a child to spend time with a person, and family violence orders made under a law of a State or Territory to protect a person from family violence. The amendments seek to make Division 11 clearer, more concise and easier to understand by the people who use and implement it, in particular, for State and Territory Magistrates making family violence orders. The amendments implement recommendations on the basis of advice provided by the Family Law Council.
Schedule 7
Schedule 7 repeals section 45A of the Act to enable the Federal Magistrates Court to also exercise jurisdiction for those property matters where the value of the property exceeds $700,000. This will provide more flexibility to ensure that matters are referred to the most appropriate court.
Schedule 8
Schedule 8 changes the terminology of the Act to remove the references to 'residence', 'contact' and 'specific issues orders'. This substantially implements recommendation 4 of the FCAC Report. The changes require consequential amendments to the terminology used in the Australian Citizenship Act 1948, the Australian Citizenship Act 2005, the Australian Passports Act 2005, the Child Support (Assessment) Act 1989 and the Migration Act 1958.
Schedule 9
Schedule 9 moves all the defined terms from Part VII of the Act to subsection 4(1) which is the general definition section for the Act. This will form a dictionary for all the terms defined in Part VII. The aim is to improve the readability of the Act for users.
FINANCIAL IMPACT STATEMENT
Resources were approved in the 2005-2006 Budget process for a community education campaign and for additional dispute resolution services to satisfy increased demand caused by compulsory pre-filing dispute resolution.
REGULATION IMPACT STATEMENT
The Office of Regulation Review has considered these proposed amendments and determined that a Regulation Impact Statement is not required for the amendments.
CONSULTATION STATEMENT
There was broad consultation by the FCAC in its inquiry into child custody arrangements in the event of family separation in the second half of 2003. The Committee received 1716 submissions from a broad cross-section of the community and family law system. The Committee undertook a wide ranging public hearing program across Australia and consulted extensively with practitioners and academics in the family law and child support fields. Two specific forums were held to ensure that the Committee heard the voices of children and young people.
In November 2004 the Government released a discussion paper on its proposed response to the FCAC report. The discussion paper was used as a basis for consultation with the community, service providers and other stakeholders on the proposed changes to the family law system. Twenty nine organisations were interviewed individually, and there were 14 group meetings involving over 330 people. Over 400 written submissions were received.
Since July 2005, the Attorney-General has held community information sessions across Australia to provide information about the proposed family law reforms. As part of those sessions the Attorney-General invited feedback on the reforms to ensure their effectiveness.
The Bill has been the subject of continuing community consultation since it was released as an exposure draft in June 2005. In its consideration of the exposure draft, the LACA Committee received some 88 submissions and held a number of hearings with a large range of stakeholders.
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the Bill to be cited as the Family Law Amendment (Shared Parental Responsibility) Act 2005.
Clause 2 - Commencement
2. This clause contains a table which sets out when each of the provisions of the Bill commences.
3. Item 1 of the table provides that Sections 1 to 3 of the Bill (which provide for the short title of the Act, the application of the schedules, and this commencement provision) and anything else in the Bill not covered by the table, commence on the day which the Bill receives Royal Assent.
4. Item 2 of the table provides that Schedules 1 and 2 commence on a single day to be fixed by Proclamation. The amendments in Schedule 1 support and promote shared parenting and encourage people to resolve post separation parenting arrangements outside of the courts. Schedule 2 implements a range of amendments to strengthen the existing compliance regime.
5. If any of the provisions in Schedules 1 and 2 do not commence within 6 months from the day on which the Bill receives Royal Assent, item 2 of the table provides that they will commence on the first day after this period.
6. Item 3 of the table provides that Schedule 3, which provides for a less adversarial approach to be adopted in child-related proceedings under the Act, commences on 1 July 2006. This date coincides with the expected commencement of the Family Relationship Centres and the Family Court of Australia is expected to have rolled out their Children's Cases Program by this date. This is also consistent with the application provision in item 8, Part 2 of this Schedule which provides that the amendments in the Schedule apply to proceedings commenced on or after 1 July 2006.
7. Item 4 of the table provides that items 1 - 8 of Schedule 4 commence on the day on which this Bill receives Royal Assent. These items will enable a wider range of organisations to apply for approval and funding as a counselling or mediation organisation, and provide for the protection against unauthorised use of protected names and symbols, such as those used by Family Relationship Centres. As the first 15 Family Relationship Centres are expected to commence operation in mid-2006, the amendments made in this Part must take place as soon as possible to allow funding to be provided if an organisation other than a voluntary organisation applies for and is selected to receive funding.
8. Item 5 of the table provides that items 9 - 139 of Schedule 4 commence on the day on which the items are proclaimed. This is linked to the Proclamation of Schedules 1 and 2 by item 2. Items 9 - 139 include a range of amendments to the counselling and dispute resolution provisions in the Act to ensure the legislation supports the Government's policy of ensuring that separating and divorcing parents have access to quality family counselling and dispute resolution services so they can attempt to resolve their disputes outside of the court, transitional arrangements in respect of changes to the process of approving organisations to provide family counselling and family dispute resolution and individual accreditation requirements, and a range of consequential amendments to the Federal Magistrates Act 1999 and the Marriage Act 1961.
9. Item 6 of the table provides that Schedules 5, 6, and 7 commence at the same time as the provisions covered by table item 2 (the provisions in Schedules 1 and 2). Schedule 5 contains amendments to clarify and strengthen the role of the independent children's lawyer. Schedule 6 repeals and replaces the existing Division 11 which deals with the relationship between orders made under the Act and family violence orders made under a law of a State or Territory. Schedule 7 amends the jurisdictional limit for the Federal Magistrates Court to provide more flexibility to ensure that matters are referred to the most appropriate court.
10. Item 7 of the table provides for the contingent commencement of item 1 of Schedule 8. Item 1 amends the definition of 'responsible parent' in section 5 of the Australian Citizenship Act 1948. It is to commence at the same time as the provisions covered by table item 2 (the provisions in Schedules 1 and 2), unless the Australian Citizenship Act 2005 commences before that time. In this case, item 1 will not commence at all. Item 2 of Schedule 8 will achieve the necessary amendment. This provision is necessary as the Australian Citizenship Act 1948 is currently in force but may be replaced by the Australian Citizenship Act 2005 before Schedule 8 commences.
11. Item 8 of the table provides for the commencement of item 2 of Schedule 8. Item 2 amends the definition of 'responsible parent' in section 6 of the Australian Citizenship Act 2005. It is to commence either at the same time as the provisions covered by table item 2 (the provisions in Schedules 1 and 2), or immediately after the Australian Citizenship Act 2005 commences, whichever is later.
12. Item 9 of the table provides for the commencement of the remaining items in Schedule 8 (items 3 - 98) which change the terminology of the Act to remove references to the terms 'residence', 'contact' and 'specific issues orders'. These provisions commence at the same time as the provisions covered by table item 2 (the provisions in Schedules 1 and 2).
13. Item 10 of the table provides for the commencement of the items in Schedule 9. The provisions in this schedule move the defined terms from Part VII (Children) of the Act to subsection 4(1) which is the general definition section for the Act. This forms a dictionary for all the terms defined in Part VII. These provisions commence at the same time as the provisions covered by table item 2 (the provisions in Schedules 1 and 2).
Clause 3 - Schedules
14. This clause provides that each Act that is specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in the Schedule.
SCHEDULE 1 - SHARED PARENTAL RESPONSIBILITY
Part 1 - Amendments
Family Law Act 1975
15. The amendments in Schedule 1, Part 1 recognise the need for a cooperative approach to parenting. The amendments promote the object of ensuring that children have a right to have a meaningful relationship and know both their parents and that parents continue to share responsibility for their children after they separate. The Part also reinforces the primary importance for the child to live in an environment where they are safe from violence or abuse. The changes to the Act also advance the Government's longstanding policy of encouraging people to take responsibility for resolving disputes themselves, in a non-adversarial manner.
16. Schedule 1, Part 1 implements a number of recommendations made by the FCAC to support and promote shared parenting and to encourage people to reach agreements about parenting, rather than using the court system. It also implements a number of recommendations made by the LACA Committee in their inquiry into the provisions of the exposure draft of the Bill.
Item 1 - Subsection 4(1)
17. Item 1 inserts a definition of 'Aboriginal child' into the consolidated definitions in subsection 4(1) of the Act. The definition facilitates new paragraphs 60B(2)(e) and 60CC(3)(h), and subsections 60B(3) and 60CC(6), which relate to the right of an Aboriginal or Torres Strait Islander child to enjoy his or her own culture. The amendment implements recommendation 45 of the LACA Report that 'Aboriginal child' means 'a child who is a descendent of the Aboriginal people of Australia'.
18. While this definition replaces the previous definition of 'Aboriginal peoples' in subsection 68F(4) of the existing Act, it is not envisaged that this will significantly change the group of people who may be covered by the definition. It will make the definition of Aboriginal child consistent with the previous definition of Torres Strait Islander child. The LACA Committee considered it appropriate for the definitions of Aboriginal and Torres Strait Islander children to be standardised and to focus on the fact of indigenous descent rather than race.
Item 2 - Subsection 4(1)
19. Item 2 inserts a definition of 'Aboriginal or Torres Strait Islander culture' into the general definitions in subsection 4(1), which now sets out the definitions for Part VII of the Act. This definition facilitates new paragraphs 60B(2)(e) and 60CC(3)(h), and subsections 60B(3) and 60CC(6), which relate to the right of an Aboriginal or Torres Strait Islander child to enjoy his or her own culture. The term 'Aboriginal or Torres Strait Islander culture' means the culture of the Aboriginal and Torres Strait Islander community or communities to which the child belongs, which includes, but is not limited to, the lifestyle and traditions of that community or communities. This implements recommendation 46 of the LACA Report that the definition be redrafted to include the words 'of the relevant community/communities'. The LACA Committee adopted this recommendation from a submission by the Aboriginal Legal Service of Western Australia.
Item 3 - Subsection 4(1)
20. Item 3 moves the definition of 'family violence' from section 60D of the existing Act (that provides definitions for Part VII) to the general definition provision in subsection 4(1). The definition has also been amended to implement recommendation 9 of the LACA Report that the definition of family violence should include an objective element. A requirement of 'reasonableness' is added to the existing definition. While there is no requirement for reasonableness for violence that has actually occurred, fear or apprehension of violence must be reasonable. This will help to address concerns that have been expressed that allegations of family violence can be made in family law proceedings even where a fear of violence is far fetched or fanciful.
21. This approach is not new. In South Australia, the Domestic Violence Act 1994 has for some time provided a concept of 'reasonable' fear or apprehension in relation to the definition of family violence. In addition, several State criminal codes have elements of reasonableness in relation to specific offences, in particular stalking type offences which also require a reasonable apprehension or fear to be established.
22. This change will not make it harder for people to disclose family violence. It does not change the definition where there has been actual violence. The courts already impute an element of reasonableness when applying the existing definition of family violence. However, this change will clarify, particularly for self-represented litigants, that the court will only take into account issues of violence where the fear of harm is 'reasonable'. This change is not intended to suggest that violence is acceptable. Given the serious consideration that courts give to family violence in making parenting orders these matters should be objectively tested. Family violence crime and should not be tolerated.
Item 4 - Subsection 4(1)
23. Item 4 inserts a new definition of 'major long-term issues' into the general definitions in subsection 4(1), which now sets out the definitions for Part VII of the Act. The definition provides a non-exclusive list of the types of long-term care, welfare and development issues which are components of parental responsibility. These long-term issues may include the child's education (both current and future), the child's religious and cultural upbringing, the child's health, the child's name, and changes to the child's living arrangements that make it significantly more difficult for a child to spend time with a parent. This last provision is consistent with recommendation 3 of the FCAC Report and has been amended in light of recommendation 2 of the LACA Report.
24. It is intended that 'the child's education' in paragraph (a) will capture issues such as which school a child attends. 'The child's religious and cultural upbringing' in paragraph (b) is intended to include decisions relating to which religion a child is, or which cultural practices a child might observe. It is intended that 'the child's health' in paragraph (c) will not capture a child's short-term illness, such as a cold, but may capture issues such as immunisation, which may affect the child's long-term health or when the child has ongoing medical needs. It is intended that 'the child's name' in paragraph (d) of the definition will capture a child's first name, middle name and surname.
25. 'Changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent' in paragraph (e) is intended to cover any substantial changes to the type and location of the residence in which the child usually lives. Paragraph (e) is not intended to cover situations where the child relocates to another residence within the same locality unless it is a significant change that impacts on the child's ability to spend time with the parent.
26. The insertion of the note clarifies that paragraph (e), as a major long-term issue, does not include decisions that parents make about their new partners. This implements recommendation 2 of the LACA Committee which noted that the key issue about decisions related to where a child lives is the capacity for the other parent to maintain and develop a relationship by spending time with that child. Paragraph (e) does not prevent a new partner moving into a residence where the child lives without a joint decision with the former spouse. The factor is intended to cover situations such as significant relocation where joint decisions are appropriate given the significant impact on the capacity for both parents to exercise parental responsibility.
27. The concept of 'major long-term issues' is relevant for new sections 65DAC and 65DAE, both inserted by item 31. These sections provide that, where parents are exercising shared parental responsibility in accordance with the terms of a parenting order that involves making a decision about a major long-term issue in relation to a child, both parents are required to discuss any proposed decision with each other and reach agreement about the decision. However, where a child is spending time with a person pursuant to the terms of a parenting order, that person is not required to consult on decisions about issues that arise during that time that are not major long-term issues. Of course, parents may choose to consult on these issues. The clarification of what issues are major long-term issues is intended to reduce disputes about what falls into this category and to make it clear that day to day decisions can be made by the parent who has care of the child, thus reducing litigation about those issues.
Item 5 - Subsection 4(1)
28. Item 5 inserts a new definition of 'relative' into the general definitions in subsection 4(1), which now sets out the definitions for Part VII of the Act. It is a broad definition of 'relative', which includes step-parents, siblings, half-siblings, grandparents, uncles, aunts, nephews, nieces and cousins. This definition is relevant for new subsections 63C(2A), 64B(2), paragraphs 60CC(3)(b) and 60CC(3)(f) and subparagraph 60CC(3)(d)(ii). Item 5 implements recommendation 44 of the LACA Committee which recommended using the term 'step-parent' rather than 'step-father or step-mother' in the definition of relative. This broad definition is intended to ensure the court takes account of other significant relationships that may be of benefit to a child in making children's orders.
Item 6 - Subsection 4(1)
29. Item 6 inserts a definition of 'Torres Strait Islander child' into the general definitions in subsection 4(1), which now sets out the definitions for Part VII of the Act. It provides that 'Torres Strait Islander child' means a child who is a descendent of the indigenous inhabitants of the Torres Strait Islands. This is a relatively common definition, which was previously defined in subsection 68F(4) of the Act. This definition has been used in legislation such as the Native Title Act 1993, the Racial Discrimination Act 1975 and the new Corporations (Aboriginal and Torres Strait Islander) Bill 2005. This definition facilitates new paragraphs 60B(2)(e) and 60CC(3)(h), and subsections 60B(3) and 60CC(6), which relate to the right of an Aboriginal or Torres Strait Islander child to enjoy his or her own culture.
Item 7 - At the end of section 4
30. Item 7 inserts two new subsections into the definitions in section 4 of the Act to facilitate the operation of the new provisions relating to shared parental responsibility. Section 4 contains definitions of terms and provisions that are used in the Act. The new subsections make clear that where the Act refers to a person having shared parental responsibility for a child, it is a reference to parental responsibility held singularly or jointly with another person. This recognises that when referring to 'parental responsibility', not all parents will share all aspects of the duties, responsibilities or authorities associated with parental responsibility, but that they may share a component or components of that responsibility while other components may be the responsibility of one parent only. These subsections are important to clarify the scope of the term.
Item 8 - Section 60B
31. Item 8 repeals the existing objects and principles of Part VII of the Act, which are set out in section 60B. The new provision better focuses the objects and principles of the Part on the best interests of the child and shared parental responsibility between parents. It implements recommendation 3 of the FCAC Report and recommendation 17 of the LACA Report.
32. New subsection 60B(1) states that the objects of Part VII are to ensure that the best interests of children are met by the items set out in paragraphs (a), (b), (c) and (d). The inclusion of the reference to 'the best interests of children' is to give greater emphasis to those interests when interpreting other provisions.
33. The objects that were already provided for in section 60B of the Act are now set out in subparagraphs 60B(1)(c) and (d). These include ensuring that children receive adequate and proper parenting to help them achieve their full potential and ensuring that parents meet their responsibilities concerning the care, welfare and development of their children.
34. Section 60B also includes two new objects. These objects mirror the primary considerations in new section 60CC that must be considered by a court in making decisions about the best interests of the child. These two new objects are placed at the start of the objects provision to draw attention to them. There is no particular priority to the objects - each is important. The first is set out in paragraph 60B(1)(a). It recognises the importance of ensuring that children are given the opportunity for their parents to have a meaningful involvement in their lives to the maximum extent possible, consistent with their best interests. The intention is to better recognise that children have a right to know their parents and the benefit to children of having a good relationship with both of their parents. However, it is also recognised that this may not be appropriate in situations such as where the safety of the child would be at risk.
35. The second new object is inserted in new paragraph 60B(1)(b). It recognises that there is a need for children to be protected from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The provision recognises that children need to be protected not only from direct harm but also harm caused by being exposed to abuse or family violence that is directed towards, or affects, another person. This would cover, for example, the possible psychological harm to a child caused by the child witnessing abuse against another child, or family violence against a member of the child's family. This new object implements recommendation 2 and conclusion 2.29 of the FCAC Report and recommendations 17 and 18 of the LACA Report. The term 'subjected to' has been retained as well as 'exposed to' in the drafting to make clear that it covers protection both from direct harm and from witnessing violence towards another person.
36. The terms 'abuse' and 'family violence' are relocated to the general definition section at subsection 4(1). Family violence is amended by item 3 to include an element of 'reasonableness'. The term 'neglect', will have a similar meaning to its use in State and Territory child protection legislation. It is intended to be limited to situations where a lack of reasonable care is likely to cause unnecessary suffering or injury to the health of the child.
37. Subsection 60B(2) sets out the principles that underlie the objects of the Act. Paragraph 60B(2)(a) remains the same as in the existing Act. It states that children have the right to know and be cared for by both their parents, regardless of whether their parents have married, separated or have never married or lived together.
38. Paragraph 60B(2)(b) is amended to specifically refer to children having a right to spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a child's life. It implements recommendation 43 of the LACA Report and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children.
39. Paragraphs 60B(2)(c) and (d) provide that parents should jointly share duties and responsibilities concerning the care, welfare and development of their children and should agree about the future parenting of their children. These principles remain essentially the same as in the existing Act.
40. New subparagraph 60B(2)(e) expands the existing principles that underlie the objects of Part VII, by including a reference to children having a right to enjoy their culture. The provision is intended to ensure that children are able to share their culture with others in their cultural community or communities (in situations where a child might belong to more than one community). The inclusion of this principle is consistent with the provisions relating specifically to Aboriginal and Torres Strait Islander children resulting from recommendation 3 of the Family Law Council's December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. It is not intended to be limited only to Aboriginal and Torres Strait Islander children.
41. As detailed above, new subparagraph 60B(2)(e) inserts a new principle that every child has a right to enjoy his or her culture. New subsection 60B(3) expands this principle, which underlies the objects of Part VII, in relation to Aboriginal and Torres Strait Islander children by identifying matters included in the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture. New subsection 60B(3) clarifies that the right includes the right of an Aboriginal or Torres Strait Islander child to maintain a connection with his or her culture and to have the support, opportunity and encouragement necessary to develop a positive appreciation of that culture and to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views.
42. These changes implement recommendation 3 of the Family Law Council's December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. These changes are also consistent with other changes in the Act to ensure the role of relatives and extended family is better recognised.
Item 9 - After Subdivision B of Division 1 of Part VII
Subdivision BA - Best interests of the child
43. Item 9 inserts a new Subdivision dealing with the best interests of the child into Division 1 of Part VII. This will give greater prominence at the start of the Division to these issues which are relevant to a large range of issues. This is aimed to assist people making agreements to make all their post separation decisions with a child focus. The consolidation of the provisions close to the start of Part VII is useful given the greater prominence to the best interests now in the objects and principles in section 60B.
Section 60CA - Child's best interest's paramount consideration in making a parenting order
44. Section 60CA moves the existing section 65E which provides that the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order to section 60CA in new Subdivision BA in Division 1, Part VII (Children). The intention is to increase the visibility and emphasis of this important provision. This is consistent with recommendation 16 of the LACA Committee.
Section 60CB - Proceedings to which this Subdivision applies
45. Section 60CB describes the proceedings to which the new Subdivision BA will apply. These include:
- •
- any proceedings under Part VII of the Act dealing with children in which the best interests of a child are the paramount consideration; and
- •
- proceedings in relation to a child to which subsection 60G(2), 63F(2) or 63F(6) or section 68R apply as in these provisions the best interest of the child must be considered.
46. The note to section 60CB highlights that Division 10 allows a court to make an order for a child's interests to be independently represented by a lawyer in proceedings under Part VII in which the best interests of a child are the paramount consideration.
Section 60CC - How a court determines what is in a child's best interests
47. Section 60CC replaces existing section 68F. It is the section that sets out the primary and additional considerations for the court to consider in determining a child's best interests.
Section 60CC(2) - Primary considerations
48. The amendment to section 60CC creates two tiers of considerations that the court must take account of in determining what is in the best interests of a child. The primary considerations are contained in the new subsection 60CC(2). They include the benefit to the child of having a meaningful relationship with both parents and the protection of the child from physical and psychological harm. The safety of the child is not intended to be subordinate to the child's meaningful relationship with both parents. The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court's attention to the revised objects of Part VII of the Act which are set out in the new section 60B (inserted by item 8).
49. For example in a case where there is family violence or sexual abuse then keeping the child safe will have particular relevance. In other cases not involving any issues of safety that will be less relevant and the issue of the benefit of a meaningful relationship with both parents will be the primary factor although other factors in the secondary list, such as the child's views, or failure to previously fulfil parental responsibilities without any reason may also be considered as relevant.
50. There may be some instances where these secondary considerations may outweigh the primary considerations. For example the court may have a case of a teenage indigenous child who wants to keep living with a parent to maintain their connection to traditional culture. The other parent who lives far away and is unable to travel regularly also seeks residence. They also have demonstrated that they will not facilitate connection with culture. In such a circumstance the court may well decide that for that particular child the secondary factors may effectively outweigh that consideration and that it would not be in the best interests of that child to change residence, the court may consider other ways the child and parent can maintain a meaningful relationship.
51. The primary factors mirror the first two objects set out in new section 60B. These objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
52. The wording of the new primary factor concerning the need to protect children from harm is consistent with the approach recommended by the LACA Committee in recommendation 18. The Committee recommended simplifying the provision so that the phrase is simple and forceful and focuses on the key issue of ensuring safety of the child.
Additional considerations - Section 60CC(3)
53. The second tier of additional considerations in the new subsection 60CC(3) consists of the existing considerations in subsection 68F(2) of the Act. These have been modified as outlined below.
Paragraph 60CC(3)(a)
54. The references to a child's 'wishes' in paragraph 68F(2)(a) have been changed to references to a child's 'views'. Paragraph 60CC(3)(a) now provides that in determining what is in a child's best interests the court must consider, amongst other factors, any 'views' expressed by the child and any other factors that the court thinks are relevant to the weight it should give to the child's 'views'.
55. The amendment recognises that a child may not necessarily want to express a 'wish' about which of his or her parents the child will live with or spend time with. It is intended that 'views' will also capture a child's perceptions and feelings, and will allow for any decision to be made in consultation with the child without the child having to make a decision or express a 'wish' as to which parent he or she is to live with or spend time with. It is intended that references to a child's 'views' will not exclude a child expressing his or her 'wishes'.
56. Replacing references to a child's 'wishes' to a child's 'views' is also consistent with the wording in Article 12 of the United Nations Convention on the Rights of the Child.
Paragraph 60CC(3)(b)
57. New paragraph 60CC(3)(b) replaces existing paragraph 68F(2)(b) with a modification. Existing paragraph 68F(2)(b) provides that where the court is determining the best interests of the child, it must consider the nature of the relationship with each of the child's parents and with other persons. This provision has been modified to include an explicit reference to grandparents or other relatives of the child. This change further ensures that the court recognises the importance of the relationships that the child has with their wider family, in particular grandparents.
Paragraph 60CC(3)(c)
58. A new consideration in determining what is in the best interests of a child has been added in paragraph 60CC(3)(c). The additional consideration is the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. This criterion will need to be considered by the court along with the other criteria set out in subsection 60CC(2) and (3) when making a parenting order. New subsection 60CC(4) also provides that when considering this factor, the court must consider the extent to which each of the parents has fulfilled or failed to fulfil their parental obligations.
Paragraph 60CC(3)(d)
59. Paragraph 60CC(3)(d) replaces existing paragraph 68F(2)(c) with a modification. Subparagraph 68F(2)(c)(ii) has been modified to make an explicit reference to grandparents or other relatives. The existing provision provides that, in determining what is in the best interests of a child, the court should consider the likely effect of any change of the child's circumstances particularly in relation to separation from his or her parents and other persons with whom the child has a relationship. New subparagraph 60CC(3)(d)(ii) makes an explicit reference to grandparents or other relatives. This change ensures that the court recognises the importance of the relationships that the child has with wider family in particular grandparents.
Paragraph 60CC(3)(e)
60. Paragraph 60CC(3)(e) mirrors the existing paragraph 68F(2)(d) which requires the court, when determining a child's best interests, to consider the practical difficulty and expense of a child having contact with a parent and whether this will affect the child's right to maintain direct contact with both parents on a regular basis.
Paragraph 60CC(3)(f)
61. Paragraph 60CC(3)(f) replaces existing paragraph 68F(2)(e) with a modification. Paragraph 68F(2)(e) has been modified to make an explicit reference to grandparents or other relatives. This provision provides that in determining the best interests of the child, the court should consider the capacity of the parent or of any other person to provide for the needs of the child, including emotional and intellectual needs. The amended paragraph 60CC(3)(f) recognises the importance of the relationships that the child has with wider family, in particular grandparents.
Paragraphs 60CC(3)(g) and (h)
62. Paragraphs 60CC(3)(g) and (h) replace existing paragraph 68F(2)(f). Paragraph 68F(3)(g) provides that the court must consider the maturity, sex, lifestyle and background of the child, and either of the child's parents, as well as any other characteristics of the child that the court thinks are relevant. The lifestyle, culture and traditions of a parent or child are relevant to a consideration of their background.
63. Aboriginal peoples and Torres Strait Islanders are now referred to specifically in the new subparagraph 60CC(2)(h). The subparagraph provides that the court must take into account the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture, and the likely impact that any proposed parenting order will have on that right. This paragraph supports recommendation 4 in the Family Law Council's December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze.
64. The existing paragraph 68F(2)(g) which deals with the need to protect the child from physical or psychological harm has been elevated to a primary consideration in the new subsection 60CC(2) (discussed above). The wording of this factor has also been simplified in accordance with recommendation 18 of the LACA Report.
Paragraph 60CC(3)(i)
65. Paragraph 60CC(3)(i) mirrors the existing paragraph 68F(2)(h) which requires the court, when determining a child's best interests, to consider the attitude of a parent to the child and the responsibilities of parenthood. New subsection 60CC(4) provides that in considering this factor, the court must consider to extent to which each of the child's parents has fulfilled, or failed to fulfil, his/her responsibilities as a parent. This includes the extent to which each parent has taken, or failed to take, the opportunity to spend time with the child, communicate with the child, and participate in decision-making about major long-term issues in relation to the child. It also includes the extent to which each parent has facilitated, or failed to facilitate, the other parent doing these things and the extent to which each parent has fulfilled, or failed to fulfil, his/her obligation to maintain the child.
Paragraph 60CC(3)(j)
66. Paragraph 60CC(3)(j) mirrors the existing paragraph 68F(2)(i) which directs the court to consider any family violence involving the child or a member of the child's family. The court will take this into account giving such weight as is appropriate to the evidence before it. Item 3 moves the definition of family violence to the general definition provision at subsection 4(1) of the Act. It also amends the definition to include an element of "reasonableness" in the fear or apprehension of violence. That amendment is consistent with recommendation 9 of the LACA Report.
Paragraph 60CC(3)(k)
67. Paragraph 60CC(3)(k) modifies the existing paragraph 68F(2)(j) which directs a court to consider any family violence order that applies to the child or a member of the child's family. New paragraph 60CC(3)(k) provides that this only includes a final or contested family violence order. The intention of this subsection is to ensure that the court does not take account of uncontested or interim family violence orders. This should address a perception that violence allegations are taken into account without proven foundation in some family law proceedings.
68. The Government does not consider that that this amendment has the potential to place children at risk. In determining the best interests of the child, the court will consider, as a primary consideration, the need to protect children from harm under subsection 60CC(2). The court may also have regard to any family violence involving the child or a member of the child's family under paragraph 60CC(3)(j). The LACA Committee considered this amendment appropriate.
69. In relation to allegations of violence, Schedule 3 contains amendments to implement new procedures for the conduct of those family law matters that do go to court. The more active case management approach will ensure that allegations of violence and abuse are dealt with at an earlier stage in the court process and that judicial officers are better able to ensure that appropriate evidence is before them to assist the court to better address these issues in the proceedings. New section 60K (inserted by item 11) places an obligation on the court to take prompt action in relation to allegations of child abuse or family violence.
Paragraphs 60CC(3)(l) and (m)
70. Paragraphs 60CC(3)(l) and (m) mirror the existing paragraphs 68F(2)(k) and (l) which direct the court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstances that the court thinks is relevant.
Subsection 60CC(4)
71. Subsection 60CC(4) provides that in considering the factors set out at paragraphs 60CC(3)(c) and (i), the court must consider to extent to which each of the child's parents has fulfilled, or failed to fulfil, his/her responsibilities as a parent. This includes the extent to which each parent has taken, or failed to take, the opportunity to spend time with the child, communicate with the child, and participate in decision-making about major long-term issues in relation to the child. It also includes the extent to which each parent has facilitated, or failed to facilitate, the other parent doing these things and the extent to which each parent has fulfilled, or failed to fulfil, his/her obligation to maintain the child. It would not cover a situation where a parent is willing to fulfil their obligations but prevented due to the other parents unwillingness to facilitate this. The court would in such a case be taking account of the unwillingness.
72. New subsection 60CC(4) seeks to ensure that when determining the best interests of the child the court is able to take into account whether a person has failed to fulfil their parental responsibility obligations in the past. Thus the court will take into account the fact a person has failed to pay child support or has consistently broken contact arrangements in the past without regard to the best interests of their child. This is appropriate as the failure of a parent to fulfil their parental responsibility obligations can have a significant impact on the child and is relevant to any determination of the child's best interests.
Subsection 60CC(5) - Consent orders
73. New subsection 60CC(5) provides that if the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may have regard to all or any of the matters set out in subsections (2) and (3). These subsections contain the primary and additional considerations that a court considers in determining a child's best interests. This allows the court to take these considerations into account and is consistent with the Government's policy of encouraging people to take responsibility for resolving disputes themselves, in a non-adversarial manner. The provision is essentially the same as the existing subsection 68F(3).
Subsection 60CC(6) - Right to enjoy Aboriginal or Torres Strait Islander culture
74. For the purpose of new paragraph 60CC(3)(h), new subsection 60CC(6) clarifies the meaning of an Aboriginal or a Torres Strait Islander child's right to enjoy his or her culture. The provision reflects the importance of Aboriginal and Torres Strait Islander children being able to maintain a connection with their culture and to have the support, opportunity and encouragement necessary to develop a positive appreciation of that culture and to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views. These changes are made as a result of recommendation 4 in the Family Law Council's December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze.
Section 60CD - How the views of a child are expressed
75. Section 60CD replaces the existing subsection 68G(1) which is the section that deals with how the court may inform itself of views expressed by a child. Section 60CD changes the references to a child's 'wishes' to a child's 'views.' Subsection 60CD(1) now provides that the section deals with how a court is to consider a child's 'views', rather than a child's 'wishes', under paragraph 60CC(2)(a) of the Act when making a determination about what is in a child's best interests. Subsection 60CD(2) provides that a court may inform itself of the 'views', rather than the 'wishes', expressed by a child by having regard to a report prepared by the relevant person or, subject to any applicable Rules of Court, by such other means as the court thinks appropriate.
76. The reasons for this change are outlined in relation to Paragraph 60CC(3)(a), above.
Section 60CE - Children not required to express views
77. Section 60CE replaces the existing section 68H. It changes the references to a child's 'wishes' to a child's 'views'. Section 60CE now provides that nobody can require a child to express his or her 'views' in relation to the any issue. The reasons for this change are outlined in relation to Paragraph 60CC(3)(a), above.
Section 60CF - Informing court of relevant family violence orders
78. Section 60CF sets out the responsibility of the parties to the proceedings to inform the court of any relevant family violence order. This provision is in exactly the same terms as section 68J of the existing Act. It has been moved to the new Subdivision BA in Division 1, Part VII (Children) along with the other provisions in Subdivision B of Division 10, Part VII (Children) of the existing Act.
Section 60CG - Court to consider risk of family violence
79. Section 60CG requires the court to ensure, when it makes an order, that the order is consistent with any family violence order that may be in place; and does not expose a person to an unacceptable risk of family violence. The court must do so to the extent that it is possible consistent with the child's best interests remaining the paramount consideration. Subsection 60CG(2) provides that the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order. Section 60CG is in exactly the same terms as section 68K of the existing Act. It has been moved to the new Subdivision BA in Division 1, Part VII (Children) along with the other provisions in Subdivision B of Division 10, Part VII (Children) of the existing Act.
Item 10 - Subsection 60G(2)(note)
80. Item 10 is a consequential amendment to the note after subsection 60G(2). The reference to Division 10 is replaced with a reference to 'Sections 60CB to 60CG'. This amendment is necessary as the relevant provisions dealing with the best interests of the child have moved from Division 10 to new Subdivision BA in Division 1 of Part VII.
Item 11 - At the end of Division 1 of Part VII
Subdivision E - Family dispute resolution
81. Item 11 inserts a new Subdivision E into Division 1 of Part VII of the Act which is the Part that deals with children. New Subdivision E deals with family dispute resolution and family counselling. It inserts new section 60I into the Act which provides for compulsory attendance at family dispute resolution in a range of circumstances, prior to lodging an application with the court. This is a key change to encourage a culture of agreement making and avoidance of an adversarial court system.
82. The object of new section 60I, which is set out in subsection 60I(1), is to ensure that parties attempt to resolve their disputes about children's matters that can be dealt with under Part VII of the Act, before commencing a court process. This will assist people in resolving family relationship issues outside of the court system, which is costly and can lead to entrenched conflict. This item substantially implements recommendation 9 of the FCAC Report.
Phases of Commencement
83. There is a staged commencement of the requirement for people to attend a dispute resolution process before applying for a Part VII order. The three phases are set out in subsections 60I(2) to (6). The reason for the staged commencement is to allow for the rollout of the Family Relationship Centres and the increased funding for dispute resolution services announced in the 2005-06 Federal Budget. This will ensure there are sufficient dispute resolution services to assist in meeting the demand. This will also allow time for development of a process for accreditation of dispute resolution practitioners.
84. In order to ensure the quality of services delivered by family counsellors, family dispute resolution practitioners and workers in Government funded children's contact services, competency-based accreditation standards are currently being developed by the Community Services and Health Industry Skills Council (CSHISC). These standards will form the minimum requirements for family counsellors, family dispute resolution practitioners and workers in funded children's contact services. Schedule 4 contains a framework for the introduction of the accreditation system.
85. Phase 1 is for proceedings filed from the commencement of this Bill to 30 June 2007. It provides that during this time, people who have a dispute about matters that may be dealt with by a parenting order must comply with the dispute resolution procedures relevant to a parenting order that are set out in the Family Law Rules 2004 (the Rules). Currently, Rule 1.05 provides that before starting a case, each prospective party to the case must comply with the pre-action procedures, set out in Part 2 of Schedule 1 of the Rules, which include attempting to resolve the dispute using dispute resolution methods.
86. This requirement will apply to all courts exercising jurisdiction under the Act, including the Federal Magistrates Court and State and Territory Courts, with such modifications as may be necessary, as provided for in subsection 60I(3). For example there may be different forms used for different steps of the process depending on which court the matter is being heard in. It is intended that the penalties set out in the Family Law Rules for non-compliance or unreasonable non-compliance (such as case management consequences or cost orders) in clause 2 of Part 2 of the Rules will apply during Phase 1.
87. Phase 2 provides that subsections 60I(7) to (11) will apply to a Part VII order in relation to a child if the application is made on or after 1 July 2007 and before the date fixed by Proclamation and none of the parties have applied for a Part VII order in relation to the child before 1 July 2007. New applicants to the courts are most likely to benefit from the use of the dispute resolution services, as their disputes may not be as entrenched as those parties already in the litigation process.
88. Phase 2 increases the number of people the provisions will apply to, but allows for the continued rollout of Family Relationship Centres. Using a date fixed by Proclamation to set the limits of Phase 2 allows for necessary flexibility in relation to the full rollout of the Family Relationship Centres. This responds to recommendation 25 of the LACA Report which reflected concerns that there might be a legislative obligation imposed on people prior to services being available.
89. Phase 3, in subsection 60I(6), applies subsections 60I(7) to (11) to all applications for a Part VII order that are made on or after a further Proclamation. At this stage, all Family Relationship Centres and funding will be rolled out.
Requirement to attempt to resolve dispute by family dispute resolution before applying for a parenting order
90. Subsection 60I(7) is the key operational provision. It provides that a court cannot hear an application for an order under Part VII unless the applicant has also filed, with the application, a certificate by a family dispute resolution practitioner. This certificate must state that either: (a) as set out in paragraph 60I(8)(a), the applicant did not attend family dispute resolution due to the refusal or failure of the other party or parties to attend the process; or (b) as set out in paragraph 60I(8)(b), the applicant attended family dispute resolution, conducted by the practitioner, with the other party or parties to the proceedings, at which they discussed and made a genuine effort to resolve the issue or issues to which the court application relates; or (c) as set out in paragraph 60I(8)(c), the applicant attended family dispute resolution, conducted by the practitioner, with the other party or parties to the proceedings, but that the applicant, the other party or another of the parties did not make a genuine effort to resolve the issue or issues. For example, a party who sits through a mediation without making an effort to engage with the mediator or other party.
91. Attendance at family dispute resolution is not required in a number of instances, which are set out in subsection 60I(9). These exceptions are intended to ensure that people will not be required to attend family dispute resolution in circumstances that are inappropriate.
Consent orders
92. Subparagraph 60I(9)(a)(i) provides that family dispute resolution is not required where a consent order is being sought. This is appropriate as it will mean that people who can reach agreement without assistance will not have to use the dispute resolution services if they do not require them.
Application is in response to application of another party
93. Subparagraph 60I(9)(a)(ii) provides that a certificate will also not be required where an application is being made in response to a Part VII application that another party has already made in the proceedings. This is to ensure that parties are not required to attend family dispute resolution in circumstances where an application is made for procedural or interim orders while the main proceedings are on foot. These parties would already have generally attended family dispute resolution.
Family violence or child abuse
94. As set out in paragraph 60I(9)(b), attendance at family dispute resolution is not required where the court is satisfied that there are reasonable grounds to believe that there has been or would be a risk of abuse of the child if there were to be a delay in applying for the order, or if there has been or would be a risk of family violence by one of the parties to the proceedings.
95. 'Abuse' in relation to a child and 'family violence' are already defined in section 4 of the Act which is the section that sets out the definitions for Part VII of the Act. The exceptions in paragraph 60I(9)(b) are intended to protect those people who would be at immediate risk of violence and abuse if there were to be a delay in attending court. The standard of proof required is an objective test. This means, for example, that it is not sufficient for the court to be satisfied that a party believes that there would be a risk of family violence if there were to be a delay in applying for the order. Rather, the court must be satisfied that there are reasonable grounds for this belief on an objective basis.
Contravention within 12 months
96. Paragraph 60I(9)(c) excludes participation in family dispute resolution in circumstances where a Part VII order relating to an issue in a current contravention application is made within the 12 months before the application and the court is satisfied on reasonable grounds that a person has shown serious disregard for his or her obligations under that order. This is an objective test. This partially implements recommendation 23 of the LACA Report as the Committee thought that 6 months was too short a period.
97. If the contravention relates to orders made over one year ago it is more likely that the issue can be resolved outside of the court system and attendance at a dispute resolution provider would be more valuable. It would be unreasonable to delay the court's consideration of a contravention order, where the contravention is affecting the original order made relatively recently by the court as the parties would have had to go through dispute resolution options prior to obtaining the initial orders. This is also an exception from dispute resolution in the pre-action procedures of the Family Law Rules 2004 (Rule 1.05(2)).
Urgency
98. Paragraph 60I(9)(d) provides that participating in family dispute resolution is not required if the application is made in circumstances of urgency. For example, this may cover an application which is urgent because of an immediate need to protect a child from physical harm or danger, or an urgent order for the location and recovery of a child, including cases of child abduction. This is also an exception from dispute resolution in the pre-action procedures of the Family Law Rules 2004 (Rule 1.05 (2)).
Unable to participate effectively
99. Paragraph 60I(9)(e) excludes a party who is unable to participate effectively in family dispute resolution. 'Unable' is intended to cover a limited set of circumstances of incapacity or physical remoteness and other such reasons. Examples of such situations include a person being intellectually impaired, a person addicted to drugs in such a manner that makes them unable to participate in family dispute resolution in a normal capacity, or circumstances of geographical distance where attendance by telephone is not feasible (eg due to hearing loss). A toll free national telephone advice line staffed by qualified professionals and a new website will be available to assist families with information or advice on relationship, parenting or separation issues and also with referrals to other services that can help. The advice line and website will assist families across Australia, including those who do not feel comfortable going into or cannot easily access a Family Relationship Centre, to get helpful information and advice.
100. Paragraph 60I(9)(f) provides a mechanism for further additions to be added to this list of exceptions as the need for further exceptions becomes recognised, and enables this to be done through the Family Law Regulations 1984. This allows flexibility to respond to issues that may arise in the implementation of these significant changes to the family law system. The exceptions to compulsory dispute resolution do not prevent people who wish to use these services of utilising them prior to making an application for a court order.
Compliance
101. If a person does not attend family dispute resolution in accordance with this new section 60I before applying for a Part VII order, for whatever reason, subsection 60I(10) provides that the court must consider making an order that the person attend such a process. Any such decision will be made at the discretion of the court. For example, if the applicant has claimed that the application was urgent under the exception in paragraph 60I(9)(d), but the court considers that it was not urgent, it may make an order that the parties must attend family dispute resolution before the court will deal with the matter. The court could also order costs in appropriate cases. This will discourage parties from trying to avoid the provisions and will ensure that the court considers the reasons for exemption.
102. Subsection 60I(10) will also allow the court, in appropriate cases, to send a party to a specific program even if he or she has met an exception where the court considers that the program will be beneficial. This is consistent with the overall shift to ensure that all matters that can be resolved outside the court system are.
Validity of proceedings
103. Subsection 60I(11) provides that the validity of proceedings for a Part VII order and any order made pursuant to those proceedings is not affected by a failure to comply with the requirement to attend family dispute resolution in subsection 60I(7). This will prevent technical defects after the court has already considered the case. This is appropriate if parties have already gone to the trouble and expense of having a matter heard.
Definition of 'dispute resolution provisions'
104. New subsection 60I(12) includes a definition for the term 'dispute resolution provisions' that is used in section 60I for Phase 1 of the provisions, which links back to the existing Family Law Rules that will now apply to all courts exercising family law jurisdiction due to the operation of subparagraph 60I(3).
Requirement to see a family counsellor or family dispute resolution practitioner in the case of child abuse or family violence
105. Item 11 also inserts a new section 60J as part of the new Subdivision E of Division 1 of Part VII of the Act. New Subdivision E deals with family dispute resolution and family counselling. The purpose of subsection 60J(1) is to ensure that people who are not required to attend family dispute resolution where there has been child abuse or family violence by one of the parties to the proceedings, obtain information about the services and options that are available to them. This will ensure that people are made aware of services and options (including alternatives to court action) that are available in circumstances of abuse or violence.
106. To avoid undue delay to people seeking to rely on the family violence or child abuse exceptions to family dispute resolution and make the process less bureaucratic, the information will be made available by family counsellors and family dispute resolution practitioners. An applicant for a Part VII order will be required to indicate in writing whether they have or have not received the information.
107. New subsection 60J(2) provides an exception to the requirement in section 60J(1) where there is a risk of child abuse or family violence if the matter is delayed getting to court. While the intention of section 60J(1) is to ensure that victims of violence have information on the services available to them, the exception is to ensure that those matters involving high risk of immediate violence or abuse are heard by the court as soon as possible.
108. New subsection 60J(3) provides that the validity of proceedings for a Part VII order and any order made pursuant to those proceedings is not affected by a failure to comply with the requirement to file a certificate in accordance with subsection 60J(1).
109. New subsection 60J(4) provides if a person indicates that they have not received the information about the other services and options available in circumstance of abuse or violence and the subsection 60J(2) does not apply, the principal executive officer of the relevant court must ensure that the person is referred to a family counsellor or family dispute resolution practitioner to obtain the information.
Section 60K - Court to take prompt action in relation to allegations of child abuse or family violence
110. Item 11 also inserts a new section 60K as part of the new Subdivision E of Division 1 of Part VII of the Act. New Subdivision E deals with family dispute resolution and family counselling. Section 60K places an obligation on the court to take prompt action in relation to allegations of child abuse or family violence (particularly as this forms an exception to attendance at dispute resolution). This is an important provision as where issues of violence and abuse are raised there is a process in place to ensure that there will be adequate information provided to the court so that it can make appropriate orders and so that necessary steps can be taken to ensure appropriate protections are in place.
111. Subsection 60K(1) sets out when the section applies. It applies where an application is made to a court for a Part VII order in relation to a child and a document is filed alleging that there has been abuse of a child or family violence by one of the parties or would be a risk of abuse of a child or family violence by one of the parties if there were a delay in applying for the order. This provision recognises that any necessary protection issues are addressed in a timely matter. It also allows the court to ensure it will have appropriate information about the allegations.
112. In these circumstances, subsection 60K(2) provides that the court must, as soon as practicable but within a eight week period after the document is filed, consider what orders (if any) should be made to enable appropriate evidence about the allegation to be obtained as expeditiously as possible and to protect the child or any of the parties to the proceedings. The provision states that the court should make the orders if they are appropriate.
113. This will cover allegations that are raised both in applications to the court and in responses. It will also cover documents other than the initial documents, such as affidavits, which might be filed later. This would address situations where the issue of family violence arises during the course of the proceedings. The type of order that it is envisaged includes orders to ensure that appropriate information is before the court. This may include orders for a matter to be referred to a State and Territory agency or that a State or Territory agency provide information or reports. It may also include orders that a Family Report be prepared or an independent children's lawyer for the child be appointed.
114. Subsection 60K(3) provides that when considering what order (if any) should be made under paragraph 60K(2)(b) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible, one of the matters the court must consider is whether it should make orders under new section 69ZW to obtain reports from State and Territory agencies in relation to the allegations. Section 69ZW is a new section inserted by Schedule 3 which allows the court to make an order requiring a prescribed State or Territory organisation to provide the court with documents or information it may have about notifications and investigations of child abuse or family violence affecting the child. The types of organisations that would be prescribed would include those that have investigative power into family violence and abuse issues, such as child protection agencies and police departments.
115. The intention is to ensure that the court has as much relevant information as possible when making a determination about what is in the best interests of the child. Subsection 60K(3) does not limit subparagraph 60K(2)(a)(i) and the court may make other orders under that subparagraph as it considers appropriate.
116. Subsection 60K(4) provides that when considering what order (if any) should be made under subparagraph 60K(2)(a)(ii) to protect the child or any of the parties to the proceedings, the court must consider whether orders should be made or an injunction granted under section 68B. Section 68B sets out the types of orders and injunctions the court may make for the welfare of a child. Subsection 60K(4) does not limit subparagraph 60K(2)(a)(ii) and the court may make other orders under that subparagraph as it considers appropriate.
Item 12 - At the end of subsection 61C(1)
117. Item 12 contains a series of notes to be included at the end of subsection 61C(1). Subsection 61C(1) states that in the absence of court orders each parent of a child who is not 18 has parental responsibility for the child. The notes are to assist in clarifying the meaning of the section and to act as signposts directing the reader to the various relevant provisions in the Act. For example, note 1 directs readers to subsections 61C(3) and 61D(2) for the effect of a parenting order.
118. Note 2 directs readers to section 61DA for the presumption that the court applies when making a parenting order. Note 3 directs readers to section 63C in relation to parenting plans. The notes highlight the difference between parental responsibility in cases where there are no parenting orders and in cases where parenting orders are required.
Item 13 - After section 61D
119. Item 13 inserts new provisions relating to a presumption, or starting point, about equal shared parental responsibility when making a parenting order. The new provisions can be distinguished from the principle of parental responsibility set out in section 61C which applies where there are no parenting orders. The new provisions implement recommendations 1 and 2 of the FCAC Report and recommendations 1 and 3 of the LACA Report.
120. The Government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65DAA inserted by item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
121. New section 61DA, applies to a court making a parenting order. The presumption provides that it is in the best interests of the child that the parents share equally the parental responsibility for the child. The provision is intended to promote decision making about major long-term issues by both parents, for the benefit of the child.
122. The note after section 61DA aims to assist readers and, in particular, self-represented litigants, by highlighting that the presumption of equal shared parental responsibility relates solely to the decision making responsibilities of both parents and does not relate to the amount of time the child spends with each parent.
123. New subsection 61DA(2) states that the presumption will not apply if the court reasonably believes that a parent of a child, or a person who lives with a parent of the child, has engaged in family violence or abuse of the child (or another child who is a member of the parent's family). The extension of this provision to a person who lives with a parent is intended to address concerns about the impact that violence and abuse in the home of either parent can have on the child and on the ability to exercise the joint decision making requirement of equal shared parental responsibility.
124. The provision is limited to a parent who has committed abuse of the child (or a child who is a member of the parent's family) so as not to exclude a parent who had committed sexual assault against some other person at an earlier stage from participating in decision making. Where there may be risks to the child, the presumption can be rebutted under new subsection 61DA(4).
125. New subsection 61DA(3) provides that the presumption of equal shared parental responsibility will apply at an interim hearing, unless the court considers that it is inappropriate for the presumption to apply. This implements recommendation 15 of the LACA Report. This discretion is appropriate given the limited evidence that may be available for interim hearings.
126. New subsection 61DA(4) provides that the presumption will be able to be rebutted where its application would not be in the best interests of the child. For example, where there are no issues of violence or abuse but a parent is addicted to drugs in such a manner that he or she is unable to make decisions for the benefit of the child or has a mental illness that similarly affects the capacity to share decision making. This is appropriate as under section 60CA the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order in relation to a child.
127. New section 61DB provides that, when making a final parenting order, the court must disregard the allocation of parental responsibility established after an interim hearing. The purpose of this provision is to address concerns about the potential difficulty of displacing a status quo related to parental responsibility that may be established at an interim hearing. This implements recommendation 15 of the LACA Report.
128. The provision is not intended to prevent the court from taking into consideration any of the evidence on which the interim parenting orders were based. Under section 60CA the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order in relation to a child.
129. 'Family violence' and 'abuse' in relation to a child are already defined in section 60D of the existing Act which is the definitions section for Part VII. These provisions are moved to the general definitions section in subsection 4(1). The family violence definition is amended by item 3 to include the concept of 'reasonableness'. This implements recommendation 9 of the LACA Report.
Item 14 - At the end of Division 2 of Part VII
130. Item 14 inserts new section 61F into the Act. It provides that, in applying Part VII to the circumstances of an Aboriginal or Torres Strait Islander child or identifying a person/s that has or may exercise parental responsibility for such a child, the court must have regard to any kinship obligations and child-rearing practices of Aboriginal and Torres Strait Islander culture that are relevant to the child. The definitions of the terms 'Aboriginal child', 'Torres Strait Islander child' and 'Aboriginal or Torres Strait Islander culture', are inserted into the general dictionary in subsection 4(1) of the Act by items 1, 2 and 6 of Schedule 1.
131. New section 61F implements recommendation 1 of the Family Law Council's December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. The purpose of this provision is to ensure that the unique kinship obligations and child-rearing practices (such as the involvement of extended family) of Aboriginal and Torres Strait Islander culture are recognised by the court when making decisions about the parenting of an Aboriginal or Torres Strait Islander child. This provision is consistent with other amendments to facilitate greater involvement of extended family members in the lives of children.
Item 15 - After subsection 62G(3)
132. Item 15 inserts two new subsections into section 62G. This provides for the court to direct a family consultant or welfare officer to give the court a report on matters relevant to the proceedings. Family consultant is defined in Schedule 4.
133. New subsection 62G(3A) provides that a family consultant or welfare officer who is directed to give the court a report on a matter must ascertain the views of the child in relation to the matter and include the views of the child in the report. New subsection 62G(3B) provides that subsection 62G(3A) does not apply if it would be inappropriate to do so because of the child's age or maturity or some other special circumstance. For example, if the child has a disability which makes them unable to express a view, or is a baby.
134. The intention is to ensure that, where possible, the court is informed about the views of the child on matters to which a parenting order relates. The child's views are a factor a court is to consider when determining what is in the child's best interests under section 60CC. This implements recommendation 42 of the LACA Committee. The note following this provision makes clear that the requirement to seek the views of achild is subject to section 68H which makes clear that a child cannot be forced to give a view.
Item 16 - After paragraph 63C(1)(b)
135. Item 16 amends subsection 63C(1) which defines what a parenting plan is. Under the existing Act, a parenting plan is a written agreement made between the parents of a child dealing with the issues set out in section 63C(2). The amendment adds two additional requirements to what will constitute a parenting plan.
136. Paragraph 63C(1)(ba) requires the parenting plan to be signed by the parents of the child. Paragraph 63C(1)(bb) requires the parenting plan to be dated. This is appropriate given that under new section 64D (inserted by item 25) a parenting plan entered into after a parenting order is made may render the parenting order unenforceable. The requirement to sign and date a parenting plan will emphasise the significance of the document. This partially implements recommendation 33 of the LACA Committee.
137. Paragraph 63DA(2)(d) inserted by item 18 ensures that people are advised about the effect of entering into a parenting plan when they are using the services of an adviser.
Item 17 - Subsection 63C(2)
138. Section 63C deals with the meaning of parenting plans. Item 17 facilitates the removal of the terms 'residence' and 'contact' from the Act by replacing the current subsection 63C(2), which specifies that residence and contact between the child and the parent is one of the matters that a parenting plan may deal with.
139. Item 17 inserts a new subsection 63C(2), which sets out the details of what issues a parenting plan may deal with. This includes with whom a child is to live, the time a child is to spend with a nominated person or persons, the allocation of parental responsibility (including decisions about major long-term issues in relation to a child - see subsection (2B)), the communications a child is to have with a nominated person or persons (see subsection (2C)), child maintenance, the form of consultations about parental decisions and any other aspect of the care, welfare or development of the child.
140. In particular, new paragraphs 63C(2)(g) and (h) provide that a parenting plan may deal with the process for resolving disputes about the terms or operation of the plan and the process to be used for changing the plan. The intention of these paragraphs is to ensure that parents consider the changing needs of their child or children as they get older and to work an element of flexibility into the plan. The aim of these paragraphs is to attain a greater level of compliance with parenting plans.
141. The note in subsection 63C(2) is designed to assist those using the Act, in particular, self-represented litigants, who may not otherwise be aware that this provision only relates to the maintenance of a child where the Child Support (Assessment) Act 1989 does not apply. The note explains that a parenting plan that deals with child maintenance in circumstances where the child support provisions of the Child Support (Assessment) Act 1989 apply, has no effect (see subsection 63G(5) of the Act) unless it is a child support agreement for the purposes of the child support legislation (see section 63CAA of the Act).
142. Item 17 also gives greater recognition to the important role that grandparents and other relatives play in a child's life. In particular, subsection 63C(2A) specifically provides that a parenting plan may provide for a child spending time with or communicating with the grandparent or other relative of a child. This change is consistent with the amendments to recognise the need to consider the benefit to the child of greater involvement of extended family members.
143. Subsection 63C(2B) clarifies that a parenting plan may deal with the allocation of parental responsibility for making decisions about major long-term issues in relation to a child. The definition of 'major-long term issues' is inserted into section 60D(1) by item 4.
144. The addition of subsection 63C(2C) provides greater clarity about what 'other communication' means in paragraph 63C(2)(e). The two examples it gives, which are examples only and do not limit the scope of 'other communication', are letters and telephone, email or any other electronic means. The intention is for parents to consider a variety of ways by which they can have a meaningful involvement in their children's lives, not just physical time with a child. This might include SMS, video hook-ups or attending sporting or social events their child is involved in.
Item 18 - Section 63DA
145. Item 18 replaces the existing section 63DA. It sets out the obligations of advisors (ie. legal practitioners, family counsellors, family dispute resolution practitioners and family consultants) when giving advice to people in relation to parenting plans. It aims to assist people making parenting plans to understand what the plan may include, the effect of the plan and the availability of programs to assist people who experience difficulties with their agreements or who need to negotiate a change in an agreement. This is a key provision and ensures that people are well informed and supported towards making an agreement about post-separation parenting. It is intended that as part of the package of reforms to the family law system that brochures and information materials will be developed. These will present the information required to be provided in a simple and easily understood form. This will assist advisers in fulfilling their obligations under this provision.
146. Ensuring that people are appropriately informed about parenting plans is part of the cultural shift to have cooperative, child-focussed parenting take place outside of the adversarial court system. It will be important to ensure that parents understand that the parenting plan is not enforceable but that if the agreement later breaks down it might be relevant to court orders. It will also be important that parents understand that the effect of a parenting plan made after court orders may be that formal court orders will be subject to the later parenting plan. This is due to the operation of new subsection 64D inserted by item 25.
147. New subsection 63DA(1) places an obligation on advisors assisting or advising people about parental responsibility following the breakdown of a relationship to inform them that they could consider entering into a parenting plan and the services available where they can get further assistance to develop a plan. This will make people aware of the option and the advantages to each party of a cooperative approach.
148. New subsection 63DA(2) sets out the obligations that advisers must meet when advising people about the making of a parenting plan.
149. Paragraph 63DA(2)(a) places an obligation on advisors to inform people that, where it is in the best interests of the child and reasonably practicable, they could consider as an option an arrangement where they equally share the time spent with the child. Equal time arrangements are most likely to work in situations where there is a high degree of cooperation between the parents.
150. Paragraph 63DA(2)(b) places an obligation on advisers to inform the people that if an equal time arrangement is not appropriate, they could consider whether an arrangement where the child spends substantial and significant time with each person would be in the best interests of the child and reasonably practicable. Subsection 63DA(4) makes it clear what substantial and significant time means and that it includes a variety of days including days that fall on weekends and holidays and other days. It ensures that both parents can participate in a child's routine and in events of significance to the child such as sporting events, birthdays, or concerts. It would also ensure that the child is able to participate in events significant to the parents such as birthdays or father's or mother's day.
151. Paragraph 63DA(2)(c) emphasises that decisions made by parties in developing parenting plans should be made in the best interests of the child. In this context the term should not be read in a technical way. The mediator doesn't have to consider every aspect of the legal considerations that the court must consider. This is consistent with recommendation 6 of the LACA Report.
152. Paragraph 63DA(2)(d) ensures that when giving advice to people about a parenting plan, advisors inform them of the matters that may be dealt with in a parenting plan in accordance with subsection 63C(2). As noted above at item 17, section 63C(2) sets out the issues a parenting plan may deal with. For example, with whom a child is to live, the time a child is to spend with a nominated person or persons, the allocation of parental responsibility and the process for resolving disputes about the plan.
153. New paragraphs 63DA(2)(e) and 63DA(2)(h) ensure that advisors explain the interaction between parenting plans and parenting orders. Subparagraph 63DA(2)(e) requires advisors to inform their clients that an existing parenting order may be subject to a parenting plan that they subsequently enter into. This is due to the operation of new subsection 64D inserted by item 25. Advisors must also inform their clients that the court is required (in section 65DAB at item 31) to consider the terms of the most recent parenting plan about a child when making a parenting order about that child, if it is in the best interests of the child to do so.
154. New paragraph 63DA(2)(f) requires advisors to inform their clients that it is desirable to include in a parenting plan provisions of the kind referred to in paragraphs 63C(2)(d), (g) and (h). These paragraphs deal, respectively, with the form of consultations between the parties to the plan, the process for resolving disputes about the terms or operation of the plan and the process to be used for changing the plan. The intention of these paragraphs is to help people avoid having to take parenting matters to court by ensuring that when making a plan, they consider how they will consult with one another, resolve disputes and make changes to the plan as their child grows older and their needs change.
155. New paragraph 63DA(2)(g) requires advisors to explain to their clients what programs are available to help people who experience difficulties in complying with parenting plans.
156. The note at the end of subsection 63DA(2) makes clear that an adviser must only inform people that they could consider the options of the child spending equal time and substantial and significant time with each person. It does not require the adviser to provide legal advice as to whether such arrangements are practicable or in the best interests of the child. However, the adviser may provide advice if that is appropriate.
157. New subsections 63DA(3) and (4) explain what is meant by substantial and significant time. It ensures that the focus is not just on the amount of time that each parent spends with the child but also on the type of time that is spent. The definition is to encourage people to ensure that there is a mix of holidays, weekends and other days and that both parents are able to participate in the child's daily routine and in events that are significant to the child (like sporting events, birthdays and concerts). It also ensures that the child is able to participate in events significant to the parent such as mother's or father's day, extended family weddings or christenings and birthdays.
158. New subsection 63DA(5) provides that for the purposes of this particular section, 'adviser' means a person who is a legal practitioner, a family counsellor, a family dispute resolution practitioner, or a family consultant.
159. It is envisaged that the information relating to parenting plans that advisers are required to provide under this section could be provided in written form such as brochures.
Item 19- Paragraph 63E(3)(b)
160. Item 19 amends paragraph 63E(3)(b) of the Act. Section 63E concerns the registration and revocation of parenting plans. The system for the registration of parenting plans was removed in 2003 by the Family Law Amendment Act 2003. The amendment to paragraph 63E(3)(b) is to refer to subsections 60CC(2) and (3), rather than subsection 68F(2) about best interests. This is a consequential amendment that reflects section 60CC at item 9, which sets out the primary and additional considerations for the court in determining a child's best interests.
Item 20 - Subsection 63F(6) (note)
161. Item 20 is a consequential amendment to the note at the end of the provisions about the enforcement of child welfare provisions in parenting plans. This is necessary as the provisions relating to the best interests of the child have moved from subsection 68F(2) to section 60CC by item 9.
Item 21 - Subsection 63H(2) (note)
162. Item 21 is a consequential amendment to the note at the end of the provisions about the courts powers to discharge or vary registered parenting plans. This is necessary as the provisions relating to the best interests of the child have moved from subsection 68F(2) to section 60CC by item 9.
Item 22 - Subsection 64B(2) to (4)
163. Item 22 repeals and replaces subsection 64B(2), which currently specifies contact as a matter that can be dealt with by a parenting order, subsection 64B(3), which refers to a 'residence order', and subsection 64B(4) which refers to a 'contact order'. These terminology changes are necessary due to the removal from the Act of references to contact, residence and specific issues orders. This is consistent with recommendation 4 of the FCAC Report that this terminology be removed from the Act.
164. New subsection 64B(2) provides greater detail and clarity about the matters that a parenting order can deal with. These matters include who a child is to live with, the time and other communications the child is to have with another person or persons, the allocation of parental responsibility and the form of consultations persons with parental responsibility are to have with one another. In particular, paragraph 64B(2)(g) provides that a parenting order may deal with the steps that should be taken before an application is made to a court for a variation of the order. Paragraph 64B(2)(h) provides that a parenting order may deal with the process to be used for resolving disputes about the terms or operation of the order. The aim is to ensure orders are appropriately framed and flexible to reduce the need for people to go to court about the operation or variation of parenting orders.
165. New subsection 64B(3) clarifies that a parenting order dealing with the allocation of parental responsibility under paragraph 64B(2)(c) may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child. Major long term issues are defined in item 4. This provision is not intended to limit other matters that paragraph 64B(2)(c) may cover.
166. New subsection 64B(4) sets out what the reference to other communications in paragraph 64B(2)(e) includes. This is drafted broadly and is intended to cover new technologies brought about by, for example, the internet, mobile phones and other electronic devices.
167. New subsection 64B(4A) provides that an option under paragraphs 64B(2)(g) and (h), is for a parenting order to require people to consult with a family dispute resolution practitioner to assist with resolving any dispute about the terms or operation of the order or about coming to agreement about changing the order. This subsection is not intended to limit other matters that paragraphs 64B(2)(g) and (h) may cover.
168. Item 22 gives greater recognition to the important role that grandparents and other relatives play in a child's life and to the benefits to a child of continued contact with these significant people. In particular, subsection 64B(2) specifically provides that a parenting order may provide for a child spending time with or communicating with the grandparent or other relative of a child. This change is consistent with the amendments to facilitate greater involvement of extended family members in the lives of children.
Item 23 - Subsection 64B(5)
169. Item 23 amends subsection 64B(5) of the Act. Subsection 64B(5) explains what constitutes a child maintenance order. The amendment is to refer to paragraph 64B(2)(f) rather than paragraph 64B(2)(c). This is a consequential amendment which reflects the inclusion of additional matters in subsection 64B(2) which sets out the matters a parenting order may deal with.
Item 24- Subsections 64B(6) to (8)
170. Item 24 repeals the current subsection 64B(6) in the Act, which provides for what are called 'specific issues orders'. This is a subsequent amendment to the removal of the terminology of residence and contact. As references to residence and contact orders are repealed, so too are references to specific issues orders. Instead, there is a more generic approach to parenting orders. Specific issues orders are replaced with parenting orders dealing with allocation of parental responsibility and components of parental responsibility. The new subsection 64B(6) describes the types of parenting orders that can be made in favour of a person.
171. Item 24 also repeals subsection 64B(7), which describes whom a residence, contact or specific issues order is made in favour of. The definition is no longer required as the terminology of the Act is updated by replacing the references to a residence order, a contact order and a specific issues order with references to parenting orders that provide with whom a child is to live, spend time, communicate or that allocate parental responsibility or a component of parental responsibility.
172. Item 24 also repeals subsection 64B(8), which defines 'has' in relation to residence, contact and specific issues orders. This terminology is no longer relevant.
Item 25 - At the end of Division 5 of Part VII
173. Item 25 inserts a new section 64D into Division 5. Section 64D inserts a default provision into parenting orders that are made after the commencement of this Bill. The default provision has the effect that those parenting orders will be subject to any subsequent parenting plan. This will only be the case where the parenting plan is agreed to in writing by any other person to whom the parenting order applies.
174. There is discretion for the court not to include the default provision in the parenting order in exceptional cases. This would be the case where the court has concerns that a later parenting plan would not be made in the best interests of the child. For example, a court may consider that it is in the best interests of a child to reside with his or her grandparents, as both parents have substance abuse issues. The court may exercise its discretion to make an order that can only be changed by the subsequent order of the court and not by a subsequent parenting plan. The court may do so due to concerns that the parents may attempt to use a parenting plan to override the court order and provide for the child to live with them, rather than the grandparents. It is appropriate for the court to have this discretion in order to ensure that the best interests of the child remain paramount.
175. The requirement that this be limited to exceptional cases implements the LACA Committee recommendation 34. This reflects a desire that generally people should be encouraged to vary existing parenting orders by agreement using the new services that will be available.
176. Section 64D does not mean that the parenting plan itself is enforceable (parenting plans have no legal enforceability), but it does mean that after the commencement of this Bill, where this default provision is included in the parenting order, there will no longer be a right to enforce the previous court order to the extent that it is inconsistent with the new parenting plan. People can only lose the capacity to enforce their existing parenting order within the court system if they agree to this in writing in a parenting plan. The insertion of paragraph 63DA(2)(d) by item 18 ensures that people are advised about the effect of entering into a parenting plan when they are using the services of an adviser.
177. Provisions relating to the effect of parenting plans are also contained in Schedule 2 about contravention applications.
Item 26 - Section 65A
178. This is a consequential amendment to the provision in Subdivision A of Division 6 of Part VII of the Act which describes that the Division is about parenting orders other than child maintenance orders. The change is necessary due to the additional note added by Item 27 below.
Item 27 - At the end of section 65A
179. Section 65A sets out what Division 6 of Part VII does. This Division is concerned with applying for parenting orders and the obligations parenting orders create. Item 27 inserts a note to indicate that there is a new provision in this Division, section 60I, inserted by item 11 that provides that parties should participate in family dispute resolution before applying for a parenting order. This should assist in highlighting the provisions for self-represented litigants and help make it clear that parenting orders cannot be applied for unless parties have attempted family dispute resolution.
Item 28 - Section 65AA
180. This item repeals the existing subsection that provides information about the three stage parenting compliance regime. That information is no longer required due to the changes to compliance in Schedule 2. A new provision is included which is a signpost back to section 60CA in Division 1 (inserted by item 9). This signpost makes it clear that when making parenting orders the best interests of the child are paramount.
Item 29 - Subsection 65D(1)
181. Section 65D provides the court with the necessary power to make a parenting order. Item 29 clarifies subsection 65D(1) by inserting a requirement that, in making a parenting order, the court should have regard to the presumption of equal shared parental responsibility and any parenting plans (sections 61DA and 65DAB respectively).
Item 30 - Subsection 65D(2)
182. Section 65D provides the court with the necessary power to make a parenting order. Item 30 amends subsection 65D(2) by inserting a requirement that, in discharging, varying, suspending or reviving a parenting order, the court should have regard to the presumption of equal shared parental responsibility and parenting plans (sections 61DA and 65DAB respectively). This provides a link for the court with the sections relating to the presumption. It will also aid people using the Act, in particular, self-represented litigants in understanding the operation of the provisions.
Item 31 - After section 65D
Section 65DAA - Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
183. Section 65DAA is a new provision about circumstances where the court is to consider children spending either equal and if not equal then substantial and significant time with both a child's parents.
184. Subsection 65DAA(1) implements recommendations 4 and 5 of the LACA Committee. It provides a new requirement that the court must consider making an order that a child spend equal time with each parent, if a parenting order provides or is to provide the parents with equal shared parental responsibility for the child. This provision is not a presumption 50:50 of joint custody. That approach was rejected by the FCAC. The court must consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with the parents.
185. Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the child remain the paramount consideration for parenting orders. This is set out in section 60CA by item 9.
186. Subsection 65DAA(3) makes it clear that substantial and significant time requires that the child spend both some time on weekends and holidays and some time on other days. It must also include time in daily routine and allow for participation in events that are significant to the child. This might include sporting events, birthdays or concerts. It would also include the child being able to be involved in events of significance to the parent such as family weddings or christenings, mother's or father's day, birthdays.
187. Subsection 65DAA(4) makes it clear that the court can have regard to other things when deciding what is substantial and significant time. This will allow the court flexibility in determining for each unique case in the best interests of the child to determine what the significant events are for that child and parent and what would constitute substantial time. For some children it may include things related to religious or cultural events.
188. Section 65DAA(2)-(4) is intended to ensure that the courts consider arrangements that are much more than 'one weekend a fortnight and half of the holidays' or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared parental responsibility that this will generally involve 'both' parents spending both substantial and significant time with their children.
189. Subsection 65DAA(5) sets out factors that the court should consider in determining whether both equal or substantial and significant time are reasonably practicable. These factors originate from case law, including the case of T and N (2001) FMCAfam 222. The inclusion of the factors was recommended by the Family Law Council which considered 2004 research by the Australian Institute of Family Studies entitled, Research Report No 9: Parent-Child Contact and Post Separation Parenting Arrangements.
190. Paragraph 65DAA(5)(a) provides that the court consider the proximity of the residence of the parents. It will obviously be less practical to share care in situations where the parents live in different countries or large distances away from each other.
191. Paragraph 65DAA(5)(b) is the parent's ability, including an assessment of their future ability, to implement the logistical issues associated with shared care. For example, what would the parents do if the child leaves homework at one house? Will the parents readily rectify this problem? The court may decide to make some related orders to send the parties to a program to assist them develop or improve these skills. Note 2 to the provision is a cross reference to this option.
192. Paragraph 65DAA(5)(c) refers to the parents current and future capacity to communicate and resolve difficulties. This may include a variety of issues including religious adherence, cultural identity, extra curricula activities of the child, methods of discipline, attitude to homework, health and dental care, diet and sleeping patterns.
193. Paragraph 65DAA(5)(d) ensures that there is a child focus to the decision and ensures that account is taken of the child's age, views (including factors that may have influenced those views) and the general benefit to the child of this type of arrangement.
Section 65DAB - Court to have regard to parenting plans
194. New section 65DAB is inserted to provide that when making parenting orders the court should consider the terms of the most recent parenting plan that may have been entered into by the parents about the child. The intention is that this provision will mostly be used in situations where, prior to entering the court system, parents have agreed on a parenting plan that breaks down and parenting orders are required (because the plan itself is unenforceable). It may also be relevant, where due to the effect of section 64D, a previous parenting order has become unenforceable and the parents now come before the court to seek new parenting orders.
195. The provision will give the court the benefit of information about the types of arrangements that the parents have previously considered when the court is making parenting orders. The court is still required to make a decision in the best interests of the child but information about the agreement may assist the court in considering the appropriate parenting orders to make. The court is not bound by any previous agreement.
Section 65DAC - Effect of parenting order that provides for shared parental responsibility
196. New section 65DAC provides a rule that where parental responsibility is to be shared in relation to a major long-term issue under a parenting order, this means that decisions should be made jointly. This clarifies for parents or others who may have parental responsibility, what exercising shared parental responsibility actually involves. This will ensure that both parents have a meaningful involvement in the child's life. This does not only apply in situations where parents are sharing exactly equal responsibility. In all cases where there is some sharing of responsibility then consultation, then discussion about major long-term issues is required for those parts of responsibility that are shared.
197. New subsection 65DAC(2) contains a note which explains that there is no need to consult about decisions unrelated to the major long-term care welfare and development issues, while the child is spending time with a particular person. This is further explained by section 65DAE. The intention is to make clear that while a child is with a parent, that parent takes responsibility for the child. This is intended to reduce litigation about minor details.
198. New subsection 65DAC(3) specifies that in the context of making decisions jointly, consultation between those persons and making a genuine effort to come to a decision is required. This will allow a party to seek to enforce a parenting order in circumstances where there has been no genuine attempt to consult.
199. When a decision about a major long-term issue is communicated to another person (who does not share parental responsibility) by a party with a share in parental responsibility, new subsection 65DAC(4) clarifies that section 65DAC does not require that person to establish that the decision has been made jointly. The purpose of this section is to ensure that third parties, for example schools, do not have to establish whether a decision has been made jointly between parties.
200. New section 65DAC outlines the decision making responsibility when a major long-term issue needs to be decided. These provisions are important to give meaning to the sharing of decisions about long term issues. They recognise the benefit to the child generally where both parents play a role in their life. The provisions also encourage a cooperative approach to parenting and, it is hoped, less adversarial court proceedings. Schedule 3, which provides for a less adversarial approach to be adopted in all child-related proceedings under the Act, will assist in achieving this aim.
Section 65DAE - No need to consult on issues that are not major long-term issues
201. New section 65DAE provides a new rule that where a child is spending time with a person under a parenting order, there is no need to consult about decisions that are unrelated to the major long-term care, welfare and development issues. The note to the section highlights the fact that this would include issues such as what the child eats or wears on a particular day. This is intended to emphasise the types of decisions covered by the section and reduce levels of conflict and litigation about minor issues.
202. Section 65DAE will be contestable in court. A person may disagree with a decision that has been made by the person that the child is spending time with. For example, a parent who is spending time with the child feeds the child in a manner that is inconsistent with the child's religious upbringing. Although what a child eats is not usually a major long-term issue, a child's religious upbringing is defined as a major long-term issue in item 4.
203. In the event that parties are unable to resolve this issue themselves, the parties will be required to attend family dispute resolution to discuss the issue before an application can be made to a court. The Government does not expect this provision to lead to an increase in litigation. The establishment of Family Relationship Centres and expansion of other counselling, mediation and similar services will assist parties to resolve such issues themselves and to reach agreement in a non-adversarial and cost-effective manner.
Item 32 - Section 65E
204. Item 32 repeals the existing section 65E which provides that the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order. This principle is inserted by item 9 as new section 60CA in new Subdivision BA in Division 1, Part VII (Children). The intention is to increase the visibility and emphasis of this important provision. This is consistent with recommendation 16 of the LACA Committee.
Item 33 - Paragraph 65G(2)(a)
205. Item 33 removes the requirement in section 65G that grandparents and other relative carers must obtain a family report for the consideration of the court where an order relating to where the child lives is being made with the consent of all the parties to the proceedings and that order is in favour of a person who is a grandparent or a relative. This change is made as a result of the Family Law Council's Quarterly report to the Attorney-General and the Family Law Council meeting in Hobart on 10-11 March 2005 to discuss grandparents and extended families in the family law system.
206. Removing this requirement is consistent with the amendments to facilitate greater involvement of extended family members in the lives of children and to recognise the needs of all children to maintain a connection with their culture. It is also consistent with recommendation 4 in the Family Law Council's December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze.
207. New paragraph 65G(2)(a) requires only that the parties to the proceedings attend a conference with a family consultant to discuss the matter to be determined by the proposed order. This is important so that the parties understand the effect of the orders and can be referred to appropriate support services. The court continues to have discretion to order a family report if necessary.
Item 34 - Subsection 65L(2) (note)
208. Item 34 is a consequential amendment to the note after subsection 65L(2). Subsection 65L(2) provides that the best interests of the child is the paramount consideration when the court is considering making an order for a family and child consultant to supervise or assist a parenting order. The reference in the note to Division 10 is replaced with a reference to sections 60CB to 60CG. This amendment is necessary as the relevant provisions dealing with how the court determines the best interests of the child have moved from Division 10 to new Subdivision BA in Division 1 of Part VII.
Item 35 - Subsection 65LA(2)(note)
209. Item 35 is a consequential amendment to the note after subsection 65LA(2). Subsection 65LA(2) provides that the best interests of the child is the paramount consideration when the court is considering making an order for a party to attend a post-separation parenting program. The reference in the note to Division 10 is replaced with a reference to sections 60CB to 60CG. This amendment is necessary as the relevant provisions dealing with how the court determines the best interests of the child have moved from Division 10 to new Subdivision BA in Division 1 of Part VII.
Item 36 - Section 67L (note)
210. Item 36 is a consequential amendment to the note after section 67L. Section 67L provides that the best interests of the child is the paramount consideration when the court is deciding whether to make a location order in relation to a child. The reference in the note to Division 10 is replaced with a reference to sections 60CB to 60CG. This amendment is necessary as the relevant provisions dealing with how the court determines the best interests of the child have moved from Division 10 to new Subdivision BA in Division 1 of Part VII.
Item 37 - Section 67V (note)
211. Item 37 is a consequential amendment to the note after section 67V. Section 67V provides that the best interests of the child is the paramount consideration when the court is deciding whether to make a recovery order in relation to a child. The reference in the note to Division 10 is replaced with a reference to sections 60CB to 60CG. This amendment is necessary as the relevant provisions dealing with how the court determines the best interests of the child have moved from Division 10 to new Subdivision BA in Division 1 of Part VII.
Item 38 - Subsection 67ZC(2)(note)
212. Item 38 is a consequential amendment to the note after subsection 67ZC(2). Subsection 67ZC(2) provides that the best interests of the child is the paramount consideration when the court is deciding whether to make an order relating to the welfare of children under subsection 67ZC(1). The reference in the note to Division 10 is replaced with a reference to sections 60CB to 60CG. This amendment is necessary as the relevant provisions dealing with how the court determines the best interests of the child have moved from Division 10 to new Subdivision BA in Division 1 of Part VII.
Item 39 - Subsection 69ZH(2)
213. Item 39 is a consequential amendment to add a reference to new Subdivision BA of Division 1 (which deals with how the court determines the best interests of the child) to subsection 69ZH(2). Subsection 69ZH(2) provides information on the additional application of Part VII. This amendment is necessary as the relevant provisions dealing with how the court determines the best interests of the child have moved from Division 10 to new Subdivision BA in Division 1 of Part VII.
Item 40 - Subsection 117(1)
214. Item 40 amends subsection 117(1) which states the general principle is that each party to proceedings under the Act must bear his/her own costs. This general principle is subject to the provisions set out in sub-section 117(2) and section 118. The amendment is a consequential amendment which provides that this general principle is also subject to new provision section 117AB.
Item 41 - After section 117AA
215. Item 41 inserts a new provision section 117AB after section 117 which is the section that deals with costs. The new provision provides that a court must order a party to pay some or all of the costs of another party, or other parties to the proceedings, where the court is satisfied that that party has knowingly made a false allegation in the proceedings. This provision implements recommendation 10 of the LACA Report. It attempts to address concerns that have been expressed, in particular that allegations of family violence and abuse can be easily made and may be taken into account in family law proceedings. The provision is broader than family violence or abuse allegations and would apply to any false statement knowingly made.
216. The LACA Report noted that this approach avoids the need for separate criminal proceedings for perjury which may not be appropriate given that parents need to maintain an ongoing parenting relationship. Perjury can also be difficult to establish given it is a criminal process. The provision ensures a message to the courts that a penalty should be imposed at the same time as the court determination rather than relying on the possibility of protracted criminal proceedings at a later date. The penalty does not prevent criminal prosecution in appropriate cases. The court must be satisfied on the balance of the probabilities that a party has knowingly made a false allegation.
Part 2 - Application of Amendments
217. Schedule 1, Part 2 provides transitional arrangements for commencement of the provisions where required.
Item 42 - Definitions
218. This item inserts definitions to be applied in the interpretation of the transitional provisions related to Schedule 1. This makes the provisions easier to understand. Definitions are provided for 'commencement', and the terms 'old Act' and 'new Act'. This allows a distinction to be made about what provisions operate before and after this Schedule commences.
Item 43 - Application
219. Paragraph (1) is a transitional arrangement to make clear that the new provisions about the best interest requirements does not apply to proceedings that have been initiated prior to commencement of the Schedule. This is because the new primary and secondary factors will significantly change the type of evidence the parties may need to bring to the court and the way cases are presented. Without this provision, there may be significant costs to parties who are part way through a proceeding.
220. Paragraph (2) provides that items 13, 29 and 30, which explain how parental responsibility provisions apply, will apply to parenting orders made in proceedings initiated after commencement. This limits the application of those provisions.
221. Paragraph (3) provides that item 14, which takes into account a new consideration of Aboriginal kinship and child rearing practice, will apply whether or not the proceedings were initiated before commencement. It is not considered that any party would be disadvantaged by this provision applying to existing proceedings as courts would be likely to have considered such issues anyway.
222. Paragraph (4) states that the amendment made by item 15 (a family consultant who is directed to give a report under subsection 62G(5)) applies to directions given under that subsection on or after commencement. This will not be unfair in existing proceedings as the court will be able to take any issues into account when deciding if to make a direction.
223. Paragraph (5) provides that the new requirement that parenting plans be signed and dated inserted by item 16 only applies to parenting plans made on or after commencement.
224. Paragraph (6) provides that item 22, which states what a parenting order may deal with, also applies to parenting orders made in proceedings initiated on or after commencement.
225. Paragraph (7) provides that item 25, which inserts a new provision into parenting orders that makes it clear that subsequent parenting plans make them unenforceable, applies to parenting plans made on or after commencement. This will include a parenting order that varies an earlier parenting order, whether the earlier parenting order was made before or after commencement.
226. Paragraph (8) provides that the changes made by the insertion of provisions requiring the court to consider equal time arrangements, to have regard to subsequent parenting plans and the effect of parenting orders providing for parental responsibility, only apply to parenting orders made in proceedings initiated on or after commencement. They do not apply to proceedings already initiated.
227. Paragraph (9) ensures that the change to subsection 65G(1) to limit the requirement for a family report in certain circumstances, will apply to all proceedings including those initiated prior to commencement. It is not considered that any party would be disadvantaged by this provision applying to existing proceedings.
SCHEDULE 2 - COMPLIANCE REGIME
Part 1 - Amendments
Family Law Act 1975
228. Schedule 2, Part 1 repeals and replaces the existing Division 13A of Part VII of the Act dealing with 'consequences of failure to comply with orders, and other obligations, that affect children'. The new Division 13A contains a range of amendments to strengthen the existing enforcement regime in the Act.
229. Breaches of court orders are a major source of conflict and distress to all parties involved. The amendments in Schedule 2 ensure that enforcement applications can be dealt with appropriately by the court. This is particularly important to ensure that one of the main objects of Part VII of the Act is fulfilled and that children are able to have a meaningful relationship with both parents.
230. The reason the whole Division has been repealed is to make clear the intent and structure of the Division. The provisions have been re-ordered in a more systematic way. This addresses concerns of the LACA Committee that the existing provisions were complex and difficult to understand. The revised Division provides a more logical sequence of provisions. The issue of numbering raised by the LACA Committee in recommendation 53 has also been addressed by the re-ordering of the Division.
231. The previous terminology and references to a three-stage parenting compliance regime have been removed. These three stages were not well understood as there was confusion about the fact that stage 1 of the regime was in Division 6 of Part VII, while stages 2 and 3 were in Division 13A.
Items 1 to 3 - Section 60C (table items 6 and 13A)
232. Items 1 to 3 amend the table in section 60C (in Division 1 of Part VII of the Act) that provides an outline of the provisions in Part VII of the Act dealing with children. These amendments remove the references in items 6 and 13A of the table to 'stage 1 of parenting compliance regime', 'stage 2 of parenting compliance regime', and 'stage 3 of parenting compliance regime', as this terminology is not used in the new Division 13A (inserted by item 6).
Item 4 - Subsection 65D(3)
233. Item 4 amends subsection 65D(3) in Subdivision B of Division 6 of Part VII. Section 65D sets out the court's power to make a parenting order. Subsection 65D(3) provides that, if there is an adjournment of a proceeding for a contravention application so that a party can apply for a further parenting order, the court must hear and determine the application for the parenting order as soon as practicable. It also allows the court, if it makes a further parenting order, to dismiss the contravention application if that is appropriate. The change removes the terminology of stage 2 and makes a consequential change to the paragraph references from 'paragraph 70NG(1)(c) of proceedings under Subdivision B' to 'paragraph 70NEB(1)(c) of proceedings under Subdivision E'. This reflects the revised structure of Division 13A. (inserted by item 6).
Item 5 - Subsection 65D(3) (note)
234. Item 5 amends the note to subsection 65D(3). Subsection 65D(3) provides that, if there is an adjournment of a proceeding for a contravention application so that a party can apply for a further parenting order, the court must hear and determine the application for the parenting order as soon as practicable. It also allows the court, if it makes a further parenting order, to dismiss the contravention application if that is appropriate. The note makes it clear that where a contravention application has been adjourned, the person can apply to either the Family Court or the Federal Magistrates Court for the parenting order. The change to the note is a consequential amendment to the reference from 'Subdivision B' to 'Subdivision E' which reflects the new structure of Division 13A (inserted by item 6).
235. The note to item 5 clarifies that the words ': stage 1 of parenting compliance regime' are removed from the heading to section 65DA of the Act. This section sets out the obligations on a court when making a parenting order. This terminology of a three-stage parenting compliance regime is not used in the restructured and revised Division 13A (inserted by item 6).
Item 6 - Division 13A of Part VII
236. Item 6 repeals and replaces the existing Division 13A which deals with the consequences of the failure to comply with orders and other obligations that affect children. The replacement Division 13A is restructured into a more logical way.
Subdivision A - Preliminary
Section 70NAA - Simplified outline of the Division
237. Subdivision A deals with preliminary matters that facilitate the operation of Division 13A, including definitions of terms used in the Division and the standard of proof to be applied in determining matters under the Division. Section 70NAA provides a simplified outline of the Division, designed to make the Division easier for readers, particularly self-represented litigants, to understand and use.
238. Subsection 70NAA(1) explains that the Division deals with the powers that a court, exercising jurisdiction under the Act, has to make orders to enforce compliance under this Act affecting children. For example, parenting orders which deal with the time a child is to spend with a person.
239. Subsection 70NAA(2) clarifies that, in all contravention proceedings under this Division, the court has the power under Subdivision B to vary the parenting order. In doing so, the court will have regard to any parenting plan that has been entered into since the order was made. Section 70NBB is relevant in relation to the effect of a parenting plan in the contravention proceedings.
240. Subsection 70NAA(3) outlines the different provisions that will be applied by the court in assessing contravention applications. In particular it summarises the key differences in the application of Subdivisions C, D and E. Subdivision C applies where a contravention is alleged to have occurred, but is not established. This may include situations where there is an application but the court decides it can deal with the matter without making a finding about the contravention. Subdivision D applies where the court makes a finding that a contravention has occurred, but there is a reasonable excuse for a contravention. It sets out the powers of the court to make orders in that situation.
241. Subdivisions E and F apply where the court finds that a contravention has occurred and there is no reasonable excuse. Whether Subdivision E or F applies is a matter for the court to determine and will depend on the seriousness of the contravention. Subdivision E covers the cases where there is a less serious contravention application and Subdivision F covers cases where there is a more serious contravention application, including where there are repeated breaches of orders. The Subdivisions set out the powers of the court to address contraventions in each category. The range of options for the court in each situation have been significantly increased.
Section 70NAB - Application of Division
242. Section 70NAB clarifies the application of Division 13A. This provision is in exactly the same terms as section 70NAB of the existing Act. The reason that it is in this Bill is because the whole of Division 13A has been repealed. It makes it clear that this Division only applies to contraventions committed after the Division commences.
Section 70NAC - Meaning of contravened an order
243. Section 70NAC sets out what it means for a party to have contravened an order under the Act affecting children. To assist all users of the Act, particularly self-represented litigants, a note is inserted after section 70NAC to highlight that an action that would otherwise contravene a parenting order may not be a contravention if it is consistent with a subsequent parenting plan. This is because under new section 64D (inserted by item 25 of Schedule 1), parenting orders may be subject to a subsequent parenting plan. Where a parenting order includes a section 64D order, then a contravention application cannot be brought to enforce the original order if there is a subsequent parenting plan that has changed that aspect of the original parenting order.
244. For example, there may be a parenting order that provides that the child is to live with each parent for a week about. As the child gets older and the child's needs change the parents may agree, using a parenting plan, that it would be in the best interests of the child that the child change residence each fortnight. The new provision 64D would prevent either of the parents bringing a contravention application against the other person to seek to enforce the original orders. The parent no longer happy with the arrangement agreed in the parenting plan will need to either seek to negotiate a new agreement or seek to get new parenting orders.
Section 70NAD - Requirements taken to be included in certain orders
245. Section 70NAD is in exactly the same terms as section 70ND of the existing Act. It refers to the provisions in Subdivision C of Division 6 about the general obligations created by parenting orders - for example, that a person cannot remove a child from the care of a person where there is a parenting order that the child be in that person's care. Only the terminology has been changed. The terms 'residence order', 'contact order' and 'specific issues order' are replaced with references to orders relating to whom a child is to live, spend time and communicate. This is consistent with recommendation 4 of the FCAC's report.
Section 70NAE - Meaning of reasonable excuse for contravening an order
246. Section 70NAE sets out what constitutes a reasonable excuse for contravening a parenting order. Where there is a reasonable excuse the court is required to ensure the person understands their obligations under the order and consequences if the order is again breached. An example of a reasonable excuse is action necessary to protect the health or safety of a person, including the respondent or the child.
247. This provision is in exactly the same terms as section 70NE of the existing Act, with minor consequential drafting changes. The terminology has changed. 'Residence order' is replaced by a 'parenting order which deals with who a child is to live with. 'Contact order' is replaced by a parenting order which deals with whom a child is to spend time or to communicate. 'Specific issues order' is replaced with a reference to 'a parenting order to which section 65P applies.' Section 65P provides the general obligations that are created by parenting orders to the extent to which the order allocates parental responsibility to a person. It ensures that a person cannot hinder a person in carrying out such an order. The changes in terminology ensure the more generic description of parenting orders operates. The provisions have consequentially been renumbered.
Section 70NAF - Standard of proof
248. Section 70NAF replaces section 70NEA in the existing Act. It provides clarification of the standard of proof to be applied by the court in considering enforcement applications. The current test provided by section 140 of the Evidence Act 1995 is the civil standard of proof, the balance of probabilities, with the court to take account of the gravity of matters. Section 70NAF aims to assist practitioners and self-represented litigants by clarifying the circumstances in which the court will apply a different standard of proof.
249. New subsection 70NAF(1) specifies that the court should generally apply the civil standard of proof, the balance of probabilities, in considering matters in proceedings under Division 13A of Part VII of the Act. This is subject to subsection 70NAF(3), which provides that a stricter standard applies to orders being considered under the more serious contravention applications that may incur a criminal penalty under provisions in Subdivision F.
250. New subsection 70NAF(2) clarifies that the court should also apply the civil standard when determining whether a person had a reasonable excuse for having contravened an order affecting a child under this Act. This approach should mean that it is easier for many less serious contraventions to be dealt with by the court as they will not need to be treated as a quasi-criminal proceeding.
251. New subsection 70NAF(3) provides that a stricter standard of proof, requiring the court to be satisfied beyond reasonable doubt, applies to matters to which Subdivision F applies when a court is considering a criminal consequence for the contravention of an order (for example, imposing a bond, a fine, or a sentence of imprisonment). This is appropriate given the consequences for the individual of orders that impose criminal sanctions.
Subdivision B - Court's power to vary parenting order
Section 70NBA - Variation of parenting order
252. Section 70NBA is inserted as the first section of Subdivision B. It sets out the court's power to vary a parenting order where a contravention of an order under the Act affecting children has been alleged. The court may vary a parenting order under Subdivision B regardless of whether the contravention is also dealt with under Subdivisions D, E or F.
253. Experience suggests that many contravention applications come to the court because circumstances have changed and the existing orders are no longer appropriate. This provision makes it clear that the court always has the power to vary the order whether it is a matter where a contravention is not established or where there is a serious contravention and the court is making orders imposing criminal type penalties. This flexibility should assist in resolving many applications that come to the courts through contravention applications without the need for separate variation applications to be lodged. Having this provision at the start of the Subdivision is intended to simplify its application and to reduce the need for the duplication of a similar provision in each of the subsequent Subdivisions.
254. Subsection 70NBA(1) sets out when a court may make an order varying a 'primary order'. 'Primary order' is defined in the dictionary in section 4 of the Act to mean an order under the Act affecting children or a variation of such an order. A court may vary a primary order where contravention proceedings are brought in relation to that order and it is alleged that a person has contravened the order. The court may do so whether or not it finds that a contravention has been committed. This flexibility is appropriate as the dispute about the contravention may highlight the fact that the primary order is no longer suitable due to a change in the child's circumstances. In such a case, it is important that the court have the power to vary the order regardless of whether or not a contravention has been committed.
255. Subsection 70NBA(2) provides that if there is a more serious contravention, that would otherwise be dealt with under Subdivision F, then the court must take account of certain considerations if it decides to vary the order under subsection 70NBA(1). These additional considerations are set out in paragraphs 70NBA(2)(a) to (d). They include that the person who contravened the order did so after having attended, refused or failed to attend, or been found unsuitable to take any further part in, a post-separation parenting program, or that there was no such program that the person could attend. The court must also consider whether it would not be appropriate for a person to attend such a program or part of a program because of the behaviour of the person who contravened the order. An additional consideration is whether the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or subsection 70NFB(2) after the person had contravened a previous order under the Act affecting children. The intention of this provision is to ensure that, when varying an order involving serious or repeated contraventions, the court considers whether there are other viable options such as ordering the person to attend a post-separation parenting program or making a compensatory order are viable, or whether they have been tried before without success. The best interests of the child remain the paramount consideration in varying any order.
Section 70NBB - Effect of parenting plan
256. New section 70NBB requires the court to have regard to the terms of a parenting plan that parents have made subsequent to a parenting order, when it is considering whether to vary a parenting order under section 70NBA above. This section is relevant to those parenting orders which do not have an order made by section 64D (which provides that subsequent parenting plans make the orders unenforceable). These provisions will be particularly relevant once the family law reforms are in place. People who had made parenting orders some time ago will be encouraged, and in some cases will be required, to attend a dispute resolution process before making an application to a court. Agreements will be encouraged rather than going back to court.
257. Subsection 70NBB(1) sets out that the section applies to situations where a parenting order is made about a child, and after that order was made, the parents made a parenting plan that dealt with a matter that was covered by the parenting order.
258. Subsection 70NBB(2) requires the court, when exercising its powers to vary an order under section 70NBA, to consider the terms of the parenting plan and whether to make an order varying the parenting order to include some or all of the provisions of the parenting plan, with or without modification. Section 70NBB gives greater importance to parenting plans made after parenting orders, in order to provide maximum flexibility for parents to come to agreement even if there is a parenting order in effect. Section 70NBB implements recommendation 39 of the LACA Report.
259. The provision allows the court to consider the type of arrangements that the parties may have considered and which have not worked for them. The parenting plan may be very relevant if the reason that one party has technically contravened an order was because they thought they had a formal agreement with the other party. The court is not bound by the subsequent parenting plan - it is simply to be taken into consideration.
260. The provision will also be very relevant in the new family law system which aims to keep people out of court. People with existing orders will be encouraged to use parenting plans rather than parenting orders to address changing circumstances. They will be supported in making parenting plans by the services of the Family Relationship Centres. It is therefore appropriate that these be taken into account if the matter does need to return to court at a later date.
261. As discussed previously, section 70NBB will only be relevant for the enforcement of parenting orders that do not have a section 64D default clause. This is providing that the parenting order is subject to a subsequent parenting plan (for example, parenting orders made prior to the commencement of the provision or where the court has exercised its discretion not to include the provision). The effect of section 64D (inserted by item 25 of Schedule 1) is that a parenting order will be unenforceable to the extent it is inconsistent with a subsequent parenting plan. This is appropriate in the new system which will encourage people to resolve issues by agreement rather than through the courts. People will know upfront, when they get their initial parenting order, of the potential effect of subsequent parenting plans.
Subdivision C - Contravention alleged but not established
Section 70NCA - Application of Subdivision
262. Section 70NCA is the first section of Subdivision C. It provides that Subdivision C applies where a contravention is alleged to have occurred but is not established. This is the first of the potential options available for the court in dealing with a contravention application. For example, this provision will apply where the person fails to satisfy the standard of proof on the balance of probabilities that there has been a contravention.
263. The court can still look at the existing orders and determine if circumstances have changed, and if a variation of the original parenting order is warranted. The note to section 70NCA is an important signpost for readers, particularly self-represented litigants. It clarifies that, in addition to the court's powers in Subdivision C to order costs against the person who brought the proceeding, the court may also vary the order that has been contravened under Subdivision B. Subdivision B sets out the court's power to vary a parenting order and the effect of a subsequent parenting plan where a contravention has been alleged.
Section 70NCB - Costs
264. Section 70NCB provides that the court may order that the person who brought the contravention proceedings pay some or all of the costs of the other party or parties to the proceedings. The court must consider, in making such an order, if the applicant has previously brought contravention proceedings in relation to the primary order (or another primary order) and if, on the most recent occasion on which the person brought the proceedings, the court was not satisfied that a contravention had been committed or was satisfied that a contravention had been committed but did not make an order under section 70NBA, 70NDB, 70NDC, 70NEB or 70NFB (these are the sections under which the court has the power to make orders dealing with contraventions that it finds). The intention is to deter people from making repeated contravention applications which aim to harass or inconvenience the other party. This implements recommendation 40 of the LACA Report.
Subdivision D - Contravention established but reasonable excuse for contravention
Section 70NDA - Application of Subdivision
265. Section 70NDA is the first section of Subdivision D. It provides that Subdivision D applies if the court is satisfied that a person has committed a contravention of a primary order, but that the person had a reasonable excuse for the contravention. This applies to a contravention committed before or after the commencement of this Subdivision of a primary order made before or after the commencement of the Subdivision. 'Primary order' is defined in the dictionary in section 4 of the Act to mean an order under the Act affecting children, or a variation of such an order. Section 70NAE in Subdivision A explains what constitutes a reasonable excuse for contravening an order.
266. The note to section 70NDA provides an important signpost for readers, particularly self-represented litigants. It clarifies that, in addition to the court's powers in Subdivision D to order make up contact time or to order costs against the person who brought the application, the court may vary the order that has been contravened under Subdivision B. Subdivision B sets out the court's power to vary a parenting order and to take account of a parenting plan where a contravention of an order under the Act affecting children has been alleged. This ensures flexibility to address changing circumstances which warrant a variation of the parenting order without the need for a separate application to be made.
Section 70NDB - Order compensating person for time lost
267. The first option for the court to consider when Subdivision D applies is set out in section 70NDB. This section provides that if a person has contravened a parenting order and the result of the contravention is that another person did not spend time with the child or that the child did not live with another person for a particular period, the court must consider making an order which compensates the person for the time they did not spend with the child or did not have the child living with them.
268. This allows for the court to order make-up time even where the person who committed the contravention had a reasonable excuse. This is appropriate given that the original parenting order for contact was made in the best interests of the child, that contact with both parents is an important aspect of ensuring that a child maintains a meaningful relationship with both parents and that parents are able to fulfil their parental responsibilities in relation to their child.
269. The note to subsection 70NDB(1) is a signpost for readers directing them to the sections of Subdivisions E and F under which the court has the power to make an order compensating a person for time lost. Unlike Subdivision D, these Subdivisions apply where a person does not have a reasonable excuse for a contravention. In those cases, the court has a number of other options, as well as ordering make-up time.
270. Subsection 70NDB(2) provides that the court must not make a compensatory order under section 70NDB where it would not be in the best interests of the child to do so. It is intended that the exception relating to the best interests of the child will cover, for example, where one party refuses the other party time with the child because of a fear of violence or abuse. However, it is not intended that the exception would capture the whole range of reasons for contravention that could amount to 'reasonable excuse' in section 70NAE in Subdivision A. In all cases, other than where it is not in the child's best interests to do so, it is intended that the court must consider whether compensatory time with the child should be ordered to make up for the missed time.
Section 70NDC - Costs
271. The second option for the court to consider when Subdivision D applies is set out in section 70NDC. This section provides that if the court does not make an order under section 70NDB compensating a person for lost time, the court may order that the person who brought the contravention proceedings pay some or all of the costs of the other party or parties to the proceedings. The court must consider making such an order if the applicant has previously brought contravention proceedings about the primary order (or another primary order) and, on the most recent previous occasion on which the person brought the contravention proceedings, the court was not satisfied that a contravention had been committed, or was satisfied that a contravention had been committed but did not make an order under section 70NBA, 70NDB, 70NEB or 70NF dealing with the contravention. The intention of this provision is to deter people from making repeated contravention applications which aim to harass or inconvenience the other party. This implements recommendation 40 of the LACA Report.
Subdivision E - Contravention without reasonable excuse (less serious contravention)
Section 70NEA - Application of Subdivision
272. Subsection 70NEA(1) sets out when Subdivision E applies. It applies if a person has committed a contravention of a primary order (defined in the dictionary in section 4 of the Act) with no reasonable excuse, and the contravention is of a less serious nature. Section 70NAE in Subdivision A explains what constitutes a reasonable excuse for contravening an order.
273. Subsections 70NEA(2) and (3) clarify when a contravention is of a less serious nature such that Subdivision E applies. Under subsection 70NEA(2), the Subdivision will apply if no court has previously imposed a sanction, taken action, or adjourned proceedings under paragraph 70NEB(1)(c) in respect of a contravention by the person. Thus persons who repeatedly breach parenting orders will generally not be dealt with under this Subdivision, but under the Subdivision that deals with more serious contraventions. However, under subsection 70NEA(3), in some cases where there has been more than one contravention and where a court has previously imposed a sanction, or taken action, or adjourned proceedings under paragraph 70NEB(1)(c) in respect of a contravention by the person, but the court is satisfied that the circumstances of the current contravention make it more appropriate for it to be dealt with under Subdivision E, it can deal with the matter as a less serious contravention. This provides the court flexibility to decide it is appropriate to deal with a matter as a minor contravention even where there has been a previous breach. The substance of these provisions has not changed from the existing provisions.
274. Subsection 70NEA(4) provides that Subdivision E will not apply even if the circumstances set out in subsection 70NEA(2) are met, if the court is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order. This allows the court the flexibility to decide that the contravention should be dealt with as a contravention of a more serious nature under Subdivision F, where there are more serious penalties available including criminal sanctions.
275. Subdivision E effectively replaces stage 2 of the parenting compliance regime in the existing Act. It is not intended to cover serious or repeated contraventions of a parenting order. These are covered by new Subdivision F (previously stage 3 of the parenting compliance regime).
Section 70NEB - Powers of Court
276. Where there is a less serious contravention and Subdivision E applies, the court has the powers set out in section 70NEB. These powers expand on those in subsection 70NG(1) of the existing Act in order to strengthen the existing enforcement regime.
277. Under paragraph 70NEB(1)(a), the court may direct the person who contravened the order, or that person and another specified person, to attend a post-separation parenting program. The intention is that this will help parents resolve problems that affect the carrying out of their parenting responsibilities. This option is already available. Under paragraph 70NEB(1)(b), the court may now also make an order which compensates a party for the time they did not spend time with the child or did not have the child living with them as a result of the contravention. Under paragraph 70NEB(1)(c), the court may adjourn the proceedings to allow the parties to apply for a further parenting order. These paragraphs are essentially the same as existing paragraphs 70NG(1)(a), (b) and (c). The terminology in paragraph 70NG(1)(b) has been changed. The reference to 'contact' is replaced with 'time the person did not spend with the child' and the reference to 'residence' is replaced with 'time the child did not live with the person'. This is consistent with recommendation 4 of the FCAC's report.
278. New paragraphs 70NEB(1)(d), (e) and (f) add to the existing powers of the court and will significantly strengthen the power of the court to address less serious contraventions in a way that deters further contraventions. New paragraph 70NEB(1)(d) introduces a discretion for the court to impose a bond in accordance with new section 70NEC.
279. New paragraph 70NEB(1)(e) enables the court to order the person who contravened an order to compensate another person who incurred expenses as a result of the contravention. The expenses incurred must be reasonable expenses. This provision is intended to cover situations where airfares or other tickets purchased are wasted as a result of a person, for example, not making the child available for time with the other parent under a parenting order.
280. New paragraph 70NEB(1)(f) enables the court to make an order that the person who committed the contravention pay some or all of the costs for legal expenses of the other party or parties to the proceedings.
281. Where the court makes no other orders in relation to the contravention, new paragraph 70NEB(1)(g) enables the court to order that the person who brought the proceedings pay some or all of the costs of the person who committed the contravention. The court must consider making such an order in the circumstances set out in subsection 70NEB(7), below. The intention is to deter people from making repeated contravention applications which aim to harass or inconvenience the other party. This implements recommendation 40 of the LACA Report.
282. Note 1 to subsection 70NEB(1) provides an important signpost for readers, particularly self-represented litigants. It clarifies that, in addition to the court's powers in Subdivision E, the court may, under Subdivision B, vary the order that has been contravened. Subdivision B sets out the court's power to vary a parenting order and consider the effect of parenting plan where a contravention of an order under the Act affecting children has been alleged.
283. Note 2 to subsection 70NEB(1) clarifies that before the court makes an order for a person to attend a post-separation parenting program, it consider seeking the advice of a family consultant. This is appropriate as they are likely to have more experience in dealing with local services and a better understanding of what might be available and suitable for the individual. The note refers readers to section 11E (inserted by Schedule 4) which sets out when the court may seek advice from a family consultant.
Subsection 70NEB(2) and (3)
284. Subsections 70NEB(2) and (3) are in exactly the same terms as subsections 70NG(2) and (3) of the existing Act. Subsection 70NEB(2) deals with when a court can make an order under paragraph 70NEB(1)(a) that a person, other than the person who committed the contravention, attend a post-separation parenting program. Subsection 70NEB(3) requires the principal executive officer of the court to notify the provider of the program that the order has been made. This is to ensure that they are aware of the orders. The reason these provisions are repeated in this Bill is because the whole of Division 13A has been repealed.
Subsection 70NEB(4) and (5)
285. Subsection 70NEB(4) provides further details about the application of paragraph 70NEB(1)(b) which allows the court to make an order compensating a person for time the person did not spend or live with the child due to a contravention. This is appropriate as it may ensure the child benefits from time with the other person that they have missed out on.
286. New subsection 70NEB(4) provides that the court must consider making a compensatory order under paragraph 70NEB(1)(b) where a contravention of a parenting order has occurred which has resulted in a person not spending time with, or living with, a child. However, subsection 70NEB(5) provides that the court must not make a compensatory time order under paragraph 70NEB(1)(b) where it would not be in the best interests of the child to do so.
Subsection 70NEB(6)
287. Subsection 70NEB(6) provides further details about the application of paragraph 70NEB(1)(c) which provides that the court may adjourn the proceedings to allow the parties to apply for a further parenting order. This provision is in exactly the same terms as subsection 70NG(1A) of the existing Act.
Subsection 70NEB(7)
288. Subsection 70NEB(7) provides further details about the application of paragraph 70NEB(1)(g) which enables the court to order that the person who brought the proceedings pay some or all of the costs of the person who committed the contravention. The court must consider making such an order if the applicant has previously brought contravention proceedings in relation to the order and, on the most recent occasion on which the person brought the proceedings, the court was not satisfied that a contravention had been committed or was satisfied that a contravention had been committed but did not make an order under section 70NBA, 70NDB, 70NDC, 70NFB or 70NBA (these are the sections under which the court has the power to make orders dealing with contraventions). The intention is to deter people from making repeated contravention applications for minor breaches which aim to harass or inconvenience the other party. It is only applicable where the court has considered the issue and decided that no orders are appropriate. This is one of a number of amendments that implement recommendation 40 of the LACA Report.
Section 70NEC - Bonds
289. Section 70NEC provides for the type of bonds the court may require a person to enter into as a sanction for committing a less serious contravention under the new paragraph 70NEB(1)(d). The court must specify the period of the bond (limited to 2 years) (subsection 70NEC(2)) and determine if the bond is to be with or without surety and security (subsection 70NEC(3)).
290. The conditions that may be imposed on a person by a bond are detailed in subsection 70NEC(4) but are not limited to those listed in that subsection. The court may require good behaviour by a person or for that person to attend an appointment with a family consultant, or attend family counselling or family dispute resolution.
291. Subsection 70NEC(5) requires the court, if it proposes to require a person to enter into a bond, to clearly explain to a person in language likely to be understood by the person, the purpose and effect of the requirement and the consequences of not entering into the bond or failing to act in accordance with the bond. This requirement on the court is consistent with other provisions in the Act that oblige the court, lawyers and others, to provide clear information about the nature and effect of any orders made in proceedings under this Act so that there can be no misunderstanding about what is intended.
Section 70NED - Duties of provider of post-separation parenting program
292. Section 70NED replaces section 70NH of the existing Act. It provides that a provider of a post-separation parenting program, which a person has been ordered to attend under paragraph 70NEB(1)(a), must inform the court if the provider considers the person to be unsuitable to attend the program, or if the person fails to attend the whole or part of the program.
Section 70NEF - Evidence
293. Section 70NEF replaces section 70NI of the existing Act. Subsection 70NEF(1) provides that evidence of anything said, or any admission made, by a person attending a post-separation parenting program is not admissible in any court, or any proceedings. However, subsection 70NEF(2) provides that evidence in the form of an adult's admission of abuse or risk of abuse to a child under 18 years, or a disclosure by a child that he or she has been abused or is at risk of abuse, is not excluded by operation of subsection 70NEF(1).
Section 70NEG - Court may make further orders in relation to attendance at program
294. Section 70NEG replaces section 70NIA of the existing Act, and allows the court to make appropriate orders if a person who has been ordered to attend post-separation parenting program does not attend, or was assessed as unsuitable to attend.
Subdivision F - Contravention without reasonable excuse (more serious contravention)
Section 70NFA - Application of Subdivision
295. Subsection 70NFA(1) sets out that Subdivision F applies if a person has committed a contravention of a primary order (defined in the dictionary in section 4 of the Act) with no reasonable excuse and the contravention is of a more serious nature. Section 70NAE explains what constitutes a reasonable excuse for contravening an order. The note to subsection 70NFA(1) refers the reader to section 70NAF, which sets out the applicable standard of proof in determining matters under Division 13A.
296. Subsections 70NFA(2) and (3) clarify when a contravention is of a more serious nature such that Subdivision F applies. Under subsection 70NFA(2), this will be the case even if no court has previously imposed a sanction, taken action, or adjourned proceedings under paragraph 70NEB(1)(c) in respect of a contravention by the person, yet the court is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order. Thus a person who only commits one contravention can be immediately dealt with under this Subdivision if they show serious disregard for their obligations. What amounts to a serious disregard will depend on the circumstances of the case but, by way of example, could include the removal of a child to another place despite orders of the court or harassment despite repeated warnings and the terms of the parenting order. In such cases, the court will deal with the matter under Subdivision F, which requires the court to consider imposing more serious penalties ranging from community service orders to fines and imprisonment.
297. Subsection 70NFA(3) clarifies that a contravention is of a more serious nature, such that Subdivision F applies, if a court has previously imposed a sanction, taken action, or adjourned proceedings under paragraph 70NEB(1)(c) in respect of a contravention by the person. Thus where there have been repeated breaches the matter would ordinarily be dealt with as a more serious contravention under Subdivision F.
298. Subsection 70NFA(4) provides that Subdivision F does not apply if the court is satisfied that it is more appropriate for the contravention to be dealt with under Subdivision B. Under Subdivision B the court can vary a parenting order and must take account of a subsequent parenting plan. This allows the court the flexibility to decide that the contravention is best dealt with by varying the parenting order. This is appropriate as in some cases a variation of the parenting order may be the most appropriate option even where the conditions for the application of Subdivision F are met. For example, there may be a serious contravention and the court may simply decide it is in the best interests of the child to vary the parenting order to reverse the order about who the child will live with but not to impose any other penalty under Subdivision F.
299. Subsection 70NFA(5) clarifies that the Subdivision applies whether the parenting order to which the contravention relates was made prior to the commencement of the new division; or whether the contravention occurred prior to the commencement of the new division. This provision is in the same terms as subsection 70NJ(2B) of the existing Act.
300. Subdivision F effectively replaces stage 3 of the parenting compliance regime in the existing Act.
Section 70NFB - Powers of Court
301. Where Subdivision F applies and there is a more serious contravention, the court has the powers set out in section 70NFB. These powers expand on those in the existing Act in order to strengthen the existing enforcement regime.
302. New paragraph 70NFB(1)(a) provides that where there is a serious contravention there is a presumption that the court will order costs against the person who has contravened the order (using the courts power to award costs under paragraph 70NFB(2)(g)) unless it is not in the best interests of the child.
303. Paragraph 70NFB(1)(b) provides that where the court makes an order for costs under paragraph 70NFB(2)(g), the court must also consider making another order under subsection 70NFB(2). For example, a compensatory order, a community service order or an order imposing a fine.
304. Where the court does not make an order for costs under paragraph 70NFB(2)(g), the court must make at least one other order under subsection 70NFB(2) that the court considers to be the most appropriate. This ensures that the court must impose some kind of sanction to more serious contraventions.
305. Subsection 70NFB(2) lists the powers that are available to the court under Subdivision F for serious contraventions. These powers expand on those in subsection 70NJ(3) of the existing Act in order to strengthen the existing enforcement regime. The existing subsection 70NJ(3) provides that the court can impose various sanctions including a community service order, a bond, a fine of up to 60 penalty units or a sentence of imprisonment for a period of 12 months or less. These sanctions are retained in paragraphs 70NFB(2)(a), (b), (d) and (e) respectively.
306. New paragraph 70NFB(2)(c) expands the possible sanctions to include a power for the court to make a compensatory order for the time a person did not spend with the child as a result of the contravention.
307. New subparagraph 70NFB(2)(f) enables the court to order the person who contravened an order to compensate another person who incurred expenses as a result of the contravention. The expenses incurred must be reasonable expenses. This provision is intended to cover situations where airfares or other tickets purchased are wasted as a result of a person, for example, not making the child available for time with the other parent under a parenting order.
308. New subparagraph 70NFB(2)(g) enables the court to make an order that the person who contravened an order pay all of the costs for legal expenses of the other party or parties to the proceedings under Division 13A. New subsection 70NFB(1) inserts a presumption that where Subdivision F applies the court will make a costs order under paragraph 70NFB(2)(g) unless it is not in the best interests of the child.
309. New paragraph 70NFB(2)(h) enables the court to make an order that the person who contravened an order pay some of the costs for legal expenses of the other party or parties to the proceedings under Division 13A.
310. Subsection 70NFB(3) provides that where a court varies or discharges a community service order under section 70NFD it may give any direction as to the effect of the variation or discharge as it thinks appropriate. This provision is in exactly the same terms as subsection 70NJ(4) of the existing Act, with minor consequential drafting changes.
311. Subsection 70NFB(4) provides that a sanction of imprisonment may be imposed for the non-payment of maintenance where the contravention was intentional or fraudulent. This provision is in similar terms as subsection 70NJ(6) of the existing Act.
312. Subsection 70NFB(5) provides that the court must not impose a sanction of imprisonment in respect of a breach of certain provisions of the Child Support (Assessment) Act 1989 - in particular, a contravention of a child support assessment or a breach of a child support agreement made under that Act, or a contravention of a departure order made under Division 4 of Part 7 of that Act. This provision is in exactly the same terms as subsection 70NJ(6A) of the existing Act.
313. Subsection 70NFB(6) provides the court with flexibility to express an order made under section 70NFB to take effect immediately, at the end of a specified period or on the occurrence of a specified event. This provision is in exactly the same terms as subsection 70NJ(7) of the existing Act.
314. Subsection 70NFB(7) clarifies that at the time of imposing a sanction the court may also make other orders it considers necessary to ensure future compliance. This provision is in exactly the same terms as subsection 70NJ(8) of the existing Act.
Section 70NFC - When court is empowered to make a community service order
315. Section 70NFC sets out the details of a community service order the court is empowered to make under paragraph 70NFB(2)(a). This provision is in similar terms to section 70NK of the existing Act, with only minor consequential drafting changes.
Section 70NFD - Variation and discharge of community service orders
316. Section 70NFD provides for the variation and discharge of community service orders. This provision is in similar terms to section 70NL of the existing Act, with only minor consequential drafting changes.
Section 70NFE - Bonds
317. Section 70NFE provides for bonds that the court may impose under paragraph 70NFB(2)(b). This provision is in similar terms to section 70NL of the existing Act, with only minor consequential drafting changes.
Section 70NFF - Procedure for enforcing community service orders or bonds
318. Section 70NFF provides for the procedure for enforcing community service orders or bonds. This provision is in similar terms to section 70NN of the existing Act, with only minor consequential drafting changes.
Section 70NFG - Sentences of imprisonment
319. Section 70NFG provides for sentences of imprisonment that may be imposed by the court under paragraph 70NFB(2)(e). This provision is in similar terms to section 70NO of the existing Act, with minor consequential drafting changes.
Section 70NFH - Relationship between Subdivision and other laws
320. Section 70NFH explains the relationship between Subdivision F and other laws. This provision is in similar terms to section 70NP of the existing Act, with only minor consequential drafting changes.
Section 70NFI - Arrangements with States and Territories for carrying out of sentences and orders
321. Section 70NFI explains the arrangements with the States and Territories for carrying out sentences and orders. This provision is in exactly the same terms as subsection 70NQ of the existing Act.
Section 70NFJ - Subdivision does not limit operation of section 105
322. Section 70NFJ explains the interaction between Subdivision F and section 105. This provision is in exactly the same terms as subsection 70NR of the existing Act.
Item 7 - Subsection 117(1)
323. Subsection 117(1) states the principle that each party to proceedings under the Act shall bear his or her own costs. Item 7 amends subsection 117(1) to make the principle subject to new subsection 70NFB(1). Subsection 70NFB(1) inserts a presumption that, where there is a contravention to which Subdivision F applies, the court will make an order for costs against the party who has committed the contravention, unless it is not in the best interests of the child. Item 7 is a consequential amendment to facilitate the operation of subsection 70NFB(1).
Part 2 - Application of amendments and savings
Item 8 - Definitions
324. Item 8 provides definitions for the terms 'commencement', 'new Act', and 'old Act' used in this Part.
Item 9 - Application
325. Item 9 specifies that the Schedule 2 amendments apply to a contravention of a parenting order (or alleged contravention) that occurs on or after the commencement of the Schedule.
Item 10 - Saving of regulations
326. Item 10 identifies regulations that were made under the specified provisions of the Act prior to the commencement of these amendments. This item saves those regulations so that they will continue to have effect on and after the commencement of these amendments, as if they had been made for the purpose of specified corresponding provisions of the amended Act. A table of corresponding provisions is provided.
SCHEDULE 3 - AMENDMENTS RELATING TO THE CONDUCT OF CHILD-RELATED PROCEEDINGS
Part 1 - Amendments
327. Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best interests of the child by encouraging parents to focus on their parenting responsibilities.
328. This approach largely reflects the approach taken by the Family Court in its pilot of the Children's Cases Program although it is not intended to restrict courts exercising family law jurisdiction under that program. The approach contains provisions about procedure already contained in the Federal Magistrates Act 1999. It also reflects provisions relating to management of cases in the United Kingdom Civil Procedure Rules (40th Update) and the Children and Young Persons (Care and Protection Act) Act 1998 (NSW).
Commencement
329. The amendments made by Part 1 of this Schedule will apply to proceedings commenced by an application filed on or after 1 July 2006. This will allow time to implement new procedures within courts exercising family law jurisdiction, and other concurrent family law reforms.
Evidence Act 1995
Item 1 - At the end of subsection 190(1)
330. Item 1 adds a note at the end of subsection 190(1) of the Evidence Act 1995 (the Evidence Act) to highlight that the Act deals with the evidence issues in child-related proceedings, as defined in section 69ZM (inserted by item 4 of this Schedule). Section 69ZM is the section that sets out the proceedings to which new Division 12A applies. This includes all proceedings under Part VII of the Act (the part of the Act that deals with children). It also includes any other proceedings between the parties that arise from the breakdown of their relationship and that involve the court exercising family law jurisdiction, if the parties consent. This gives parties the option of resolving all elements of their family law dispute using the same less adversarial procedures that apply in children's matters.
Family Law Act 1975
Item 2 - Subsection 4(1)
331. Item 2 inserts a definition of 'child-related proceedings' into subsection 4(1) of the Act, containing the definitions that are used throughout the Act. 'Child-related proceedings' is defined by reference to section 69ZM which sets out the proceedings to which new Division 12A applies. Division 12A contains the principles for conducting child-related proceedings in a less adversarial manner. The definition is important because the provisions in Division 12A only apply to matters which are 'child-related proceedings'.
Item 3 - Section 60C (after table item 12)
332. Item 3 inserts a new item 12A into the table in section 60C which provides an outline of the provisions in Part VII of the Act (the Part of the Act that deals with children). The item refers to the addition of new Division 12A into Part VII. Division 12A contains the principles for conducting child-related proceedings in a less adversarial manner and the duties and powers of the court in giving effect to these principles.
Item 4 - After Division 12 of Part VII
333. Item 4 inserts new Division 12A into Part VII of the Act relating to children. Division 12A sets out the principles for conducting child-related proceedings in a less adversarial manner. The Division contains a list of general duties and powers that a court must adopt in child-related proceedings and the rules of evidence in those proceedings.
Subdivision A - Proceedings to which this Division applies
Section 69ZM - Proceedings to which this Division applies
334. New section 69ZM defines what is meant by 'child-related proceedings', and how Division 12A applies. Division 12A only applies to 'child-related proceedings'. Firstly, subsection 69ZM(1) provides that 'child-related proceedings' are all proceedings under Part VII of the Act. Part VII relates to children and deals with proceedings for orders such as parenting orders, child maintenance orders, location and recovery orders, orders for the enforcement of orders affecting children, and proceedings for injunctions relating to children.
335. Secondly, paragraph 69ZM(2)(a) provides that 'child-related proceedings' include proceedings that are partly under Part VII of the Act to the extent that they are proceedings under that Part. Paragraph 69ZM(2)(b) then provides that 'child-related proceedings' can also include proceedings that are partly under Part VII of the Act to the extent that they are not proceedings under that Part, if the parties consent. Subsection 69ZM(5) ensures that any such consent must be free from coercion and in a form to be prescribed by the Rules of Court. This requirement that consent be free from coercion implements LACA recommendation 35.
336. Subsection 69ZM(3) provides that 'child-related proceedings' also include any other proceedings between the parties that involve the court exercising jurisdiction under the Act and that arise from the breakdown of the parties' marital relationship, if the parties consent. This may include, for example, property settlement proceedings or spousal maintenance proceedings. However, Division 12A will only apply to such proceedings where the parties have each consented and where the parties are also parties to proceedings under Part VII of the Act or have been parties to such proceedings. Subsection 69ZM(5) ensures that any such consent must be free from coercion.
337. New paragraph 69ZM(5)(a) provides that the consent to a matter becoming a child-related proceeding must be free from coercion. This implements recommendation 35 of the LACA Report and addresses concerns that weaker parties may be forced into giving their consent by stronger parties. New paragraph 69ZM(5)(b) allows the Rules of Court to prescribe the form by which consent must be given. This will ensure a standard procedure for signifying consent that will allow the court to be satisfied that the consent of the parties is deliberate and informed.
338. Subsection 69ZM(6) provides that consent given by persons for the purposes of subsection 69ZM(5) is irrevocable except with leave of the court. This means that if a party has given his or her consent to a proceeding which is covered by paragraph 69ZM(2)(b) or subsection 69ZM(3) being dealt with by a court in accordance with the provisions in new Division 12A, that party cannot later revoke that consent without the leave of the court and have the dispute dealt with otherwise than in accordance with Division 12A. The intention is to minimise the costs involved in courts having to adopt a different case management approach once a matter has begun on the basis that parties have changed their minds about consent. The fact that consent must be demonstrated by a form prescribed by the court will ensure that there is evidence about what the parties have agreed.
Subdivision B - Principles for conducting child-related proceedings
Section 69ZN - Principles for conducting child-related proceedings
339. New section 69ZN sets out the principles for conducting child-related proceedings. Subsection 69ZN(1) provides that the court must give effect to these principles in performing its duties and exercising its powers (whether under this Division or otherwise) in child-related proceedings, and in making other decisions about the conduct of child-related proceedings. These principles will apply in the exercise of the court's duties and powers in other proceedings that the parties have consented to join to child-related proceedings, and therefore to which Division 12A applies, by virtue of paragraph 69ZM(2)(b) and subsection 69ZM(3). However, the proceedings, or any order made in them, will not be invalid should the court fail to apply a principle.
340. Subsection 69ZN(2) removes any doubt that regard is to be had to the principles in interpreting Division 12A.
341. The first principle, in subsection 69ZN(3), is intended to ensure that the proceedings are focussed on the child. This means that the court must consider the child's needs and the impact that the conduct of the proceedings may have on him/her. In particular the court must consider the likely stress on the child of the conflict between the parents that is created by the proceedings and seek to minimise this. The court may, for example, consider making orders that the child attend family counselling to assist the child to understand the court's orders or the trial process. The court may also, when setting hearing dates, consider the stress caused to the child by lengthy times between hearing dates and seek to minimise this impact where appropriate.
342. The second principle, in subsection 69ZN(4), is that the court must actively direct, control and manage the conduct of child-related proceedings. This will enhance the role of the judicial officer, requiring them to have more control over the conduct of the hearing, rather than the parties and their representatives controlling the conduct of the hearing.
343. The third principle, in subsection 69ZN(5), is that the proceedings must be conducted in a way that will safeguard the child or children concerned against family violence, child abuse and child neglect; and safeguard the parties against family violence. This implements recommendation 36 of the LACA Report and gives emphasis to the protection of the child in less adversarial proceedings. The more active case management approach in Division 12A should ensure that allegations of violence and abuse are dealt with at an earlier stage in the court process. It will also ensure that judicial officers are better able to ensure that appropriate evidence is before them. This will assist courts to better address issues of child abuse and family violence in proceedings.
344. The fourth principle, in subsection 69ZN(6), is intended to ensure that the proceedings, as far as possible, are conducted in a way that encourages the parents to focus on their child or children and on their ongoing relationship as parents. The aim is to promote both a focus on the child and cooperation between the parties to allow at least a positive working relationship between them, both during and after the proceedings so that they can communicate in order to fulfil their responsibilities as parents. This means that the court, when it considers how to conduct the proceedings, must consider ways that it might minimise the level of conflict between the parents and ensure that the focus of both parents is on the child.
345. This principle comes from concerns that a traditional adversarial approach to litigation is harmful to children as it can entrench conflict between parents. It can also lead to a focus on the parents and their perceptions of their rights rather than a focus on the child.
346. The fifth principle, in subsection 69ZN(7), is intended to provide that the proceedings be conducted without undue delay and with as little formality and legal technicality as possible. This does not mean that the proceedings will be conducted in a casual way that detracts from the seriousness of the orders being made. It is intended that the proceedings be conducted in a way that makes the parties feel comfortable and that ensures that the matter can be finalised in a timely way. It is intended that new subsection 69ZN(7) go further than the current subsection 97(3) of the Act, which provides that in proceedings under the Act the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted. This subsection replicates subsection 93(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
Section 69ZO - This Division also applies to proceedings in Chambers
347. New section 69ZO provides that all of the duties and powers conferred on a 'court' throughout Division 12A are also conferred on a Judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate who is hearing a child-related proceeding in Chambers. This is to ensure that the provisions of Division 12A apply to any proceedings or parts of proceedings that are heard in Chambers. Similar provisions exist in other federal court legislation.
348. Subsection 97(1A) of the Act already makes provision for proceedings to be heard by a judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate sitting in Chambers where there is authorisation to do so in the regulations or the applicable Rules.
349. The note to section 69ZO clarifies that an order made in Chambers has the same effect as an order made in open court.
Section 69ZP - Powers under this Division may be exercised on court's own initiative
350. New section 69ZP provides that the court may exercise a power under Division 12A either on the court's own initiative or at the request of a party to the proceedings. This gives the court flexibility in discharging its obligation to actively manage cases in a way that encourages parents to focus on their child and on their ongoing relationship as parents and without undue delay or formality. It ensures a more inquisitorial approach by courts to resolving children's issues. This is appropriate given that decisions must be made in the best interests of the child not just on the position put to the court by the parties.
Subdivision C - Duties and powers related to giving effect to the principles
Section 69ZQ - General duties
351. New subsection 69ZQ(1) lists a number of general duties that the court must carry out in giving effect to the principles in new section 69ZN. These will ensure that cases are actively managed in a way that encourages parents to focus on their child and on their ongoing relationship as parents and without undue delay or formality. They will also ensure the proceedings are not protracted, and should help to reduce the overall costs.
352. Paragraph 69ZQ(1)(a) provides that the court will need to decide which of the issues identified in the application and in the proceedings actually require full investigation and hearing, and which of these issues may be disposed of summarily. As set out in paragraphs 69ZQ(1)(b) and (c), the court will also have to decide the order in which issues are to be decided and give directions about the timing of steps that are to be taken in the proceedings. This will lead to better management of proceedings.
353. There is a specific duty in paragraph 69ZQ(1)(d) to consider whether the likely benefits of taking a step in the proceedings justify the costs of taking it. This could be relevant in a situation where parties are proposing to use multiple experts or have particular evidence given by a variety of witnesses. In such a situation, the court may decide that only one of the witnesses proposed will be sufficient to establish a particular fact in the case.
354. Paragraph 69ZQ(1)(e) requires the court to make appropriate use of technology, such as video-link, audio-link, or other electronic technology. This provision supplements the existing discretion to use such technology at Division 2 of Part XI of the Act. This provision is intentionally wide, as it is difficult to predict the future development of technology which may assist in family law proceedings.
355. Paragraph 69ZQ(1)(f) provides that the court will again need to consider encouraging the parties to use a family dispute resolution or family counselling process if the court considers that is appropriate. This reinforces the Government's intention to ensure that family separations are dealt with outside the legal system wherever that is possible. It is not intended that the court's role should be to mediate or to take part in negotiations.
356. However, it is intended that the court carry out a more active role in creating opportunities for successful negotiations to take place between the parties, which may lead to consent orders being made during the proceedings on some or all of the issues in dispute. This is consistent with new Subdivision E in Division 1 of Part VII of the Act, inserted by item 9 of Schedule 1. This subdivision inserts new section 60I into the Act which provides for compulsory attendance at family dispute resolution in a range of circumstances, prior to lodging an application with the court. This is a key change to encourage a culture of agreement making and avoidance of an adversarial court system.
357. Paragraph 69ZQ(1)(g) provides that the court must deal with as many aspects of the matter as the court can on a single occasion, in order to prevent parties having to attend at more court events than is necessary. This will minimise the impact of the proceedings on the child, and help to reduce costs for the parties.
358. Paragraph 69ZQ(1)(h) provides that the court must also consider dealing with the matter without requiring the parties' physical attendance at court, where this is appropriate. It is envisaged that parties may not need to attend court in two different types of instances - (1) where the use of appropriate technology (eg video link) removes the need for a party's physical attendance in the court, and (2) where the court can make decisions on the papers (where this is appropriate) without it being necessary for the court to hear more about the matter before making its decision. Any decision made by the court to deal with a case without the parties would need to be made in accordance with the principles of natural justice and procedural fairness.
359. It is expected that these duties will be fulfilled by the court at an early stage of proceedings in order to give effect to the principles behind this active case management approach. For example, it is intended that as early as possible in the proceedings the court will identify the issues in dispute and make directions to ensure that the case proceeds as expeditiously as possible. However, it is recognised that the exact time at which these duties are fulfilled will differ between courts exercising jurisdiction under the Act and between cases.
360. A number of these general duties are modelled on the duties set out in Rule 1.4 of Part 1 of the United Kingdom Civil Procedure Rules (40th Update).
361. Subsection 69ZQ(2) provides that in giving effect to the five principles set out in section 69ZN, the court is not limited to undertaking only what is required by subsection 69ZQ(1). The court may give effect to the principles in other ways.
362. Subsection 69ZQ(3) provides that the court's failure to comply with subsection 69ZQ(1) will not invalidate an order.Section 69ZR - Power to make determinations, findings and orders at any stage of proceedings
363. Section 69ZR makes clear that the court can make findings of fact, determine a matter arising in the proceeding, or make an order at any stage after the commencement of proceedings. This is intended to encourage the court to consider making findings throughout the hearing rather than leaving all findings to a judgement at the end. This should assist in narrowing the issues between the parties and better focus the proceedings on the key issues.
364. Subsection 69ZR(2) clarifies that this does not prevent the court making a finding of fact, determining a matter arising in the proceeding, or making an order in relation to a particular issue at the same time as making final orders.
365. To avoid any doubt, subsection 69ZR(3) clarifies that the making of a finding of fact, determination or order under subsection 69ZR(1) is not a reason for a judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate to disqualify himself or herself from a further hearing of the proceedings.
366. The aim of this section is to provide the court maximum flexibility in how it determines the best management of a particular case.
Section 69ZS - Use of family consultants
367. Section 69ZS provides that at any time during child related proceedings, the court may designate a family consultant as the family consultant in relation to the proceedings. A family consultant so designated will have the functions described in section 11A. The notes to section 69ZS provide signposts for readers to sections 11A and 11F which are inserted by Schedule 4. These sections relate to the role of family consultants in proceedings. This provision has been inserted to clarify that it is envisaged that family consultants will play a much more active role in child-related proceedings than they traditionally have in other more adversarial proceedings. The consultants will be a key resource for the decision-maker in resolution of the issues.
Subdivision D - Matters relating to evidence
Section 69ZT - Rules of evidence not to apply unless court decides
368. New section 69ZT is one of the key provisions in achieving less adversarial court processes in child-related proceedings. It provides that the court must not apply the rules of evidence referred to in subsection 190(1) of the Evidence Act in child-related proceedings unless the court considers that the circumstances are exceptional and it has taken into account the factors set out in paragraph 69ZT(3)(b).
369. The provisions referred to in subsection 190(1) of the Evidence Act set out the general rules of evidence that apply to court proceedings. These are:
- (a)
- Division 3 (General Rules about Giving Evidence), Division 4 (Examination-in-Chief and Re-examination), and Division 5 (Cross-Examination) of Part 2.1
- (b)
- Parts 2.2 (Documents) and 2.3 (Other Evidence), and
- (c)
- Parts 3.2 to 3.8 (including Hearsay, Opinion Evidence, Admissions, Evidence of Judgements, Credibility and Character).
2. Generally, these rules of the Evidence Act relate to the manner of giving evidence, the method of proof of documents (or other evidence) and the exclusionary rules. Specifically, these rules deal with the ways of giving evidence, examination-in-chief and re-examination, cross-examination, proof of documents, other evidence, hearsay evidence, opinion evidence, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character.
3. It is intended that in each child-related proceeding, the court may, if it considers that the circumstances are exceptional, apply these rules of evidence on an issue by issue basis in the proceedings. This means that, in some proceedings, some of these rules of evidence may be applied in relation to some parts of the proceeding but not others. It may also mean that in some proceedings, no rules of evidence are applied.
4. Subsection 69ZT(2) clarifies that a court may give such weight, if any, as it thinks fit to evidence admitted as a consequence of the Evidence Act not applying due to the operation of subsection 69ZT(1). It is appropriate that the court has this discretion where evidence is admitted that would be inadmissible if not for the waiver of the rules of evidence. This makes it clear that the court has flexibility to determine the probative value of material that it relies upon even where the rules of evidence would not otherwise apply.
5. Paragraph 69ZT(3)(b) provides that, when deciding whether to apply one or more of the specified provisions of the Evidence Act to an issue in child-related proceedings, the court must take into account a number of factors. These include the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings, the probative value of the evidence and the powers of the court to adjourn the hearing, to make another order or to give a direction in relation to the evidence. These factors are found in subsection 190(4) of the Evidence Act. Their inclusion also implements recommendation 37 of the LACA report. The Committee was of the view that requiring the court to take these factors into account when deciding whether it should apply the rules of evidence in child-related proceedings would provide greater surety of justice for the parties to the proceedings.
6. The high threshold for applying the rules of evidence is appropriate as the waiving of the specified provisions of the Evidence Act is an integral element of the active judicial management necessary to achieve less adversarial court processes in child-related proceedings. It also implements recommendation 37 of the LACA report. However, the court is left with the discretion to apply the rules of evidence in the appropriate case where the threshold is reached. For example the test of 'exceptional' may be met in a serious contravention case where the court is considering a criminal penalty such as imprisonment. It may be appropriate to apply the rules of evidence to such a proceeding due to the gravity of the potential outcome. Even where rules of evidence are applied, other factors related to child-related proceedings can continue to operate, in particular the case management approach.
7. Subsection 69ZT(4) clarifies that a court may give such weight, if any, as it thinks fit to evidence that is admitted as a consequence of its decision to apply a provision of the Evidence Act listed in subsection 69ZT(1). This makes clear the flexibility of the court in the consideration of these issues.
8. Subsection 69ZT(5) puts beyond doubt that the waiver of provisions of the Evidence Act under subsection 69ZT(1), does not revive the operation of a rule of common law or a law of a State or Territory that would have been prevented from operating because of those provisions. The intention is for the court not to apply such rules in child-related proceedings. Where the court considers that the circumstances are exceptional and that it is necessary in all the circumstances to do so, the court may apply one or more of the provisions of the Evidence Act mentioned in subsection 69ZT(1).Section 69ZU - Evidence of family consultants
9. Subsection 69ZU provides that, without the agreement of the parties, the court must not take any opinions expressed by a family consultant into account in determining the issues in a case, unless such opinions are given as part of sworn evidence in a case. This clarifies the status of what is said by a family consultant on the occasions when a Judge chooses to include them in the proceedings. The functions of family consultants are set out in new Part III of the Act inserted by Schedule 4. The court may appoint a family consultant prior to or during the proceedings with a view to assisting the parties to have a better understanding of the effect that particular issues or behaviours may have on a child from a social science perspective. The family consultant should also be able to provide parents with information on programs or services that may assist them.
Section 69ZV - Evidence of children
10. Section 100A from Part XI (Procedure and Evidence) of the Act has been repealed and relocated to the new Division 12A in Part VII, and is now the new section 69ZV. It has been moved to the new Division because it relates to evidence in children's proceedings under Part VII.
11. Section 69ZV provides that, despite any other Act or rule of law, evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible solely because of the law against hearsay in any child-related proceedings. A 'representation' includes an express or implied representation which can be either oral or in writing, and a representation inferred from conduct - see subsection 69ZV(5).
12. While the effect of 69ZV is that, in many cases, rules of evidence including the hearsay rule would not apply in child-related proceedings, section 69ZV is necessary in those exceptional cases where a court considers that it is necessary to apply rules of evidence. In those cases, the rules related to hearsay will still not be relevant in relation to evidence of representations made by a child. This provision is particularly relevant for the role of independent children's lawyers.
13. The effect of subsection 69ZV(5) is to confine the application of this provision to children under 18. This is appropriate as after attaining the age of 18 the child in question would be able to provide evidence to the court directly. Other parts of Part VII, such as provision of child maintenance, do apply to children who are over 18 in certain circumstances.
Section 69ZW - Evidence relating to child abuse or family violence
14. Section 69ZW gives the court the power to make an order in child-related proceedings requiring a prescribed State or Territory agency to provide the court with documents which contain information about one or more of the following:
- •
- any notifications to the agency of suspected abuse of the child or family violence affecting the child
- •
- any assessments by the agency of investigations into a notification of that kind,
- •
- any reports commissioned by the agency in the course of investigating a notification.
15. The prescribed agencies will include the child welfare agencies of the States and Territories and police departments as they are likely to be the agencies which would conduct investigations and hold reports related to issues of child protection and family violence. They will be prescribed in the Family Law Regulations 1984. Section 69ZW implements recommendation 11 of the LACA Committee. The intention is to ensure that where allegations of violence or abuse are made, the court has as much information as possible relevant to those allegations when making a determination about what is in the best interests of the child.
16. Subsection 69ZW(3) clarifies that nothing in the order is to be taken to require the agency to provide the court with documents or information not in the possession or control of the agency; or documents or information that include the identity of the person who made the notification. If the agency does provide documents or information that include the identity of the person who made the notification, disclosure of these documents or information can only be made in the circumstances set out in subsection 69ZW(6).
17. Subsection 69ZW(4) ensures that a law of a State or Territory has no effect to the extent that it would hinder or prevent an agency from complying with the order. The intention is that subsection 69ZW(4) will prevail to the extent of any inconsistency between it and the law of a State or Territory. This will ensure that courts exercising family law jurisdiction are able to compel the same information from all States and Territories in spite of the differences in their child welfare legislation.
18. This is intended to assist the court to overcome issues that arose in the case of Northern Territory v GPAO and others (1998)
196 CLR 553. In this case the High Court found that the existing provisions of the Act did not override provisions in the Northern Territory child welfare legislation such that the Family Court of Australia could not compel the Northern Territory welfare authority to produce any documents it held concerning the protection of a child who was the subject of a parenting case. This decision has limited the evidence available to the court to determine what is in a child's best interests in some cases. Section 69ZW will address this and extend to information about family violence.
19. Subsection 69ZW(5) provides that the court must admit into evidence any documents or information provided in response to the order on which the court intends to rely. This ensures that where the court intends to rely on information it has received relating to an allegation of abuse or violence, the parties are aware of the information or allegation and have an opportunity to respond. This is in accordance with principles of natural justice.
20. Subsection 69ZW(6) provides that where an agency has provided documents or information that include the identity of the person who made the notification of suspected abuse or family violence, the court must not disclose the identity of the person unless he or she consents to the disclosure or the court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice. This provision is found in section 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). It recognises that it is a matter of public policy that the identity of a notifier should be protected in most circumstances to ensure that there is no disincentive to notification of child protection issues.
21. Subsection 69ZW(7) ensures that before any disclosure is made under subsection 69ZW(6), the agency that provided the identity of the person who made the notification is notified and given an opportunity to respond. This provision addresses the concerns expressed by some State agencies about the sensitivities in release of the identity of the notifier. In most cases the identity of the notifier will not be relevant - what is relevant is what the findings were about the child protection issue. Protection of the identity of the notifier ensures that there is no disincentive to report suspected child protection issues. This will ensure that there is an appropriate process to assess that the information is critically important and that failure to make the disclosure would prejudice the proper administration of justice.
Section 69ZX - Court's general duties and powers relating to evidence
22. Section 69ZX sets out the court's general duties and powers relating to evidence.
23. Subsection 69ZX(1) sets out a list of actions that the court may carry out in giving effect to the five principles for conducting child-related proceedings in section 69ZN. This provision supplements the duties in section 69ZQ which must be followed in giving effect to the principles and to ensure active management of children's matters to minimise the effect of the proceedings on children and to promote a cooperative parenting relationship between parents.
24. The list of actions in subsection 69ZX(1) includes the court giving directions or making orders about:
- •
- the matters in relation to which the parties are to present evidence
- •
- who is to give evidence in relation to each remaining issue
- •
- how particular evidence is to be given, and
- •
- if the court considers that expert evidence is required:
- -
- the matters in relation to which an expert is to provide evidence
- -
- the number of experts who may provide evidence in relation to a matter, and
- -
- how an expert is to provide the expert's evidence.
25. Paragraph 69ZX(1)(e) also gives the court the power to question and seek evidence or the production of documents or things from parties, witnesses and experts on matters relevant to the proceedings.
26. Subsection 69ZX(2) provides a non-exhaustive list of further types of directions and orders that the court may make in child-related proceedings. This list is not intended to limit the actions that the court may make under subsection 69ZX(1) in giving effect to the principles for conducting child-related proceedings set out in section 69ZN. The list is also not intended to limit section 69ZR, which is the section that clarifies that the court may make determinations, findings and orders at any stage of the proceedings.
27. Under subsection 69ZX(2) the court may make directions or orders:
- •
- about the use of written submissions
- •
- about the length of written submissions
- •
- limiting the time for oral argument
- •
- limiting the time for the giving of evidence
- •
- that particular testimony is to be given orally
- •
- that particular evidence is to be given by affidavit
- •
- that evidence in relation to a particular matter not be presented by a party
- •
- that evidence of a particular kind not be presented by a party
- •
- limiting, or not allowing, cross-examination of a particular witness, or
- •
- limiting the number of witnesses who are to give evidence in the proceedings.
28. A number of these provisions come from the United Kingdom Civil Procedure Rules (40th Update). They are intended to allow the court to play a much greater role in managing the conduct of the proceedings.
29. Subsection 69ZX(3) inserts a modified version of section 86 of the Native Title Act 1993. It provides that the court may, in child-related proceedings, receive into evidence the transcript of evidence in any other proceedings before a court or tribunal and draw any conclusions of fact from the transcript that it thinks proper. The court may also adopt any recommendation, finding, decision or judgment of any court or tribunal.
30. This amendment implements recommendation 5 of the Family Law Council's December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. The Report found that such a provision could provide a court with the flexibility to draw on relevant evidence adduced in other proceedings in other courts to inform decision-making in the best interests of the child pursuant to subsection 68F(2). It suggested that, in the case of an Aboriginal or Torres Strait Island child, such an approach would assist a court in informing itself of the content of the relevant kinship obligations and child-rearing practices wherever such reliable information exists. In this regard, the provision is relevant to new section 61F (inserted by item 14 in Schedule 1) which requires the court to have regard to the kinship obligations and child-rearing practices that are relevant to an Aboriginal or Torres Strait Islander child.
31. This provision does not apply only to proceedings concerning an Aboriginal or Torres Strait Islander child. It applies to all child-related proceedings. In this respect, the provision implements recommendation 48 of the LACA Report. The Committee was of the view that extending the provision to all children would be helpful and may assist in addressing issues surrounding claims of family violence and abuse. The note to subsection 69ZX(3) clarifies that the subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.
Item 5 - Section 100A
32. Item 5 repeals section 100A of Part XI of the Act, and relocates the content of section 100A to new section 69ZV. It is being moved because it only related to evidence in children's proceedings under Part VII.
33. A number of other provisions in Part XI of the Act will apply to the new Division, however because they relate not only to Part VII proceedings but also to other proceedings under the Act, they will remain in their current position in Part XI.
Item 6 - At the end of section 102A
34. Item 6 inserts a note at the bottom of section 102A in Part XI of the Act. This section deals with the restrictions on the examination of children. In particular, subsection 102A(4) deals with the circumstances where the court may admit evidence that is otherwise inadmissible. The note clarifies that new section 69ZV (previously section 100A) is relevant to evidence of a representation by a child if the inadmissibility of the evidence would otherwise be affected by the law against hearsay.
Item 7 - Part XI (heading)
35. Item 7 adds a note after the heading for Part XI of the Act, which deals with procedure and evidence, to clarify that new Division 12A of Part VII has provisions about procedure and evidence that apply to child-related proceedings. This is to assist self-represented litigants, and readers generally, locate relevant provisions in the Act.
Part 2 - Application of amendments
Item 8 - Application of amendments
36. Item 8 provides that the amendments in Part 1 of this Schedule will apply to child-related proceedings commenced by an application filed on or after 1 July 2006.
SCHEDULE 4 - CHANGES TO DISPUTE RESOLUTION AND FAMILY SERVICES37. Schedule 4 of the Bill amends the counselling and dispute resolution provisions in the Act to support the Government's policy of ensuring that separating and divorcing parents have access to quality counselling and dispute resolution services without the need to go to court. In particular, the distinction between family counselling and family dispute resolution, as set out in sections 10B and 10F at Item 32, facilitates the introduction of compulsory dispute resolution for most parents seeking an order under Part VII of the Act (as provided by section 60I, at Item 9 of Schedule 1). 38. Schedule 4 also distinguishes services available in the community from those provided by the courts, to assist in clarifying the different roles played by each in assisting people affected by separation and divorce. 39. A framework for the accreditation of family counsellors, family dispute resolution practitioners and workers in other Australian Government funded family services is also inserted by the Bill. Competency-based accreditation standards, are currently being developed by the Community Services and Health Industry Skills Council (CSHISC). The accreditation standards, expected to be in place by mid-2006, will form the minimum requirements for family counsellors, family dispute resolution practitioners and other services, and provide a mechanism for ensuring the quality of family services provided in the family law system.
40. Provisions in the Act that relate to counselling or dispute resolution which are outdated, unnecessary, or which do not reflect current practice or government policy are amended or removed by Schedule 4.
41. Schedule 4 also introduces amendments to assist in protecting the names of services funded by the Government to provide assistance and support to people in the family law system, and the symbols (or logos) used to identify these services. This protection is needed in order to ensure that the public is not misled as to the nature of services being provided in the family law system.
42. Consistent and consequential changes are made to the Federal Magistrates Act 1999, the Income Tax Assessment Act 1997 and the Marriage Act 1961.
Part 1 - Changes to approval of organisations
43. Currently, Part II of the Act sets out the process for the approval of counselling and mediation organisations. The amendments in this Part will remove the requirement that only organisations that are voluntary (that is, organisations that operate on a non-profit basis) will be able to apply to the Minister for approval and funding as a counselling or mediation organisation.
44. This reflects the Government's policy intention that a wide range of organisations be able to apply for approval and funding as a counselling or mediation organisation. As the first 15 Family Relationship Centres are expected to commence operation in mid-2006, the amendments made in this Part must take place as soon as possible to allow funding to be provided if an organisation other than a voluntary organisation applies for and is selected to receive funding.
45. Existing approved services will not be affected by the changes to the approval process as transitional arrangements for these organisations are provided in Part 4 of Schedule 4.
Item 1: Subsection 4(1) (definition of voluntary organisation)
46. Currently only a 'voluntary organisation' (that is, an organisation that operates on a non-profit basis) is eligible for approval by the Minister as an approved counselling organisation (under section 13A) and/or an approved mediation organisation (under section 13B). As this requirement is proposed to be removed by the Bill (see items 150 and 153), the definition of 'voluntary organisation' is no longer required in the Act. Accordingly, this item repeals the definition of 'voluntary organisation'.
Items 2 and 5: Subsection 13A(1) and 13B(1)
47. Sections 13A and 13B of the Act set out the process by which organisations may gain the approval of the Minister as 'approved counselling organisations' or 'approved mediation organisations' under the Act.
48. Currently, a 'voluntary organisation' (that is, an organisation that operates on a non-profit basis) may apply to the Minister for approval as a counselling organisation (subsection 13A(1)) or as a mediation organisation (subsection 13B(1)).
49. These items repeal subsections 13A(1) and 13B(1). The repeal will allow any organisation (whether operating on a non-profit basis or not) to be approved and receive funding as a counselling or mediation organisation. The requirement to apply for approval or funding will also be removed from the Act but this will not limit the ability of the Government to call for applications for organisation to be approved or receive funding for particular services.
Items 3 and 6: Subsections 13A(2) and 13B(2)
50. These items make a minor consequential amendment as a result of the repeal of subsection 13A(1) by item 2 and subsection 13B(1) by item 5.
Items 4 and 7: Paragraphs 13A(2)(b) and 13B(2)(b)
51. Currently subsections 13A(2) and 13B(2) of the Act provide that the Minister may approve an organisation as a counselling or mediation organisation only if he or she is satisfied that:
- •
- the organisation is willing and able to engage in family and child counselling, and
- •
- the whole, or a substantial part, of the organisation's activities consist, or will consist, of family and child counselling.
52. These items amend subsection 13A(2) and 13B(2) to remove the requirement for family and child counselling or family and child mediation to form 'the whole or a substantial part' of the organisation's activities in order for that organisation to be approved under the Act. The new requirement will be that the organisation's activities 'include, or will include' family and child counselling or family and child mediation (as appropriate).
53. This amendment recognises that many organisations offer a range of services to people requiring assistance, including family and child counselling, family and child mediation, social work etc and it may not be possible to characterise any single element of these services as comprising the whole, or a substantial part of that organisation's activities.
Part 2 - Protection of names
Family Law Act 1975
Item 8: After Part 1
Part 1A - Protection of Names
54. This item inserts a new Part 1A into the Act. This Part will ensure that the names of services funded by the Government to provide assistance and support to people in the family law system (such as Family Relationship Centres), and the symbols (or logos) used to identify these services are not used in an unauthorised manner that might mislead or deceive the public.
55. As the field of family law is a highly emotional area in which people may not always be in a position to objectively or thoroughly assess the credentials of service providers, consumer protection is of critical importance.
Section 9A Use of protected names and symbols
56. Section 9A is designed to ensure the public is not misled by unauthorised use of names or symbols that designate services funded by the Government (for example, Family Relationship Centres).
57. A person must not use or apply a 'protected name' (or a name so closely resembling a protected name as to be likely to be mistaken for it) or a 'protected symbol' (or a symbol so closely resembling a protected symbol as to be likely to be mistaken for it) in the manner specified in subsection 9A(1) without the Minister's written consent. The penalty for a breach of this provision is 30 penalty units. (The value of a 'penalty unit' is set out at section 4AA of the Crimes Act 1914. It is currently $110. Thus the penalty for a breach of section 9A is a fine of $3,300).
58. The protected names and protected symbols will be prescribed in the Regulations.
59. This section does not affect rights conferred by law on a person in relation to a registered trademark or a design registered under the Designs Act 2003, that was registered immediately before the commencement of the regulation prescribing a protected name or protected symbol.
60. Additionally, this section does not affect the use, or rights conferred by law relating to the use, of a name or symbol by a person in a particular manner if, immediately before the commencement of the regulation prescribing a protected name or protected symbol, that person:
61. was using that name or symbol in good faith in that manner, or
62. would have been entitled to prevent another person from passing off goods or services as the goods or services of the first-mentioned person, by means of the use of that name or symbol.
Part 3 - Changes to dispute resolution
Family Law Act 1975
Item 9: Subsection 4(1)
63. This item moves the definition of 'abuse, in relation to a child', which currently appears in sections 19N, 60D, 62F and 70NI of the Family Law Act 1975 (the Act) into section 4 of the Act. Section 4 of the Act, Interpretation, contains definitions of terms used throughout the Act. The inclusion of the definition of 'abuse' in this section assists in consolidating definitions employed in the Act. This should assist users of the Act to interpret and understand the legislation, as the Interpretation section is the logical reference point for those seeking clarification of terms used in the Act.
64. The definition of abuse is unchanged from that currently employed in the Act. The definition limits the meaning of 'abuse' in relation to a child in the Act to unlawful assault and child sexual abuse.
65. A wider concept of 'harm' is introduced in sections 10C and 10K of the Bill. These sections provide that family counsellors and family dispute resolution practitioners, respectively, must disclose communications made to them in their professional capacity where the disclosure is considered necessary to protect a child from the risk of harm, whether physical or psychological.
Item 10: Subsection 4(1)
66. This item inserts a definition of 'Accreditation Rules' into subsection 4(1) of the Act. This definition provides that 'Accreditation Rules' refers to the regulations made under section 10A.
Item 11: Subsection 4(1) (definition of approved counselling organisation)
67. Currently the Attorney-General may approve counselling organisations under section 13A of the Act. As set out in relation to section 10A, in order to ensure the quality of services delivered by family counsellors, family dispute resolution practitioners and workers in Government funded children's contact services, competency-based Accreditation Rules are currently being developed by the CSHISC. The Accreditation Rules will form the minimum requirements for family counsellors, family dispute resolution practitioners and workers in funded children's contact services and will largely replace the current situation where family and child counsellors are able to be authorised by approved organisations. As a result of this change, and the removal of the requirement for organisations to be approved before they may be funded under the Act due to the repeal of section 13H of the Act, approved organisations will no longer serve any purpose and will be removed from the Act by the Bill. Accordingly, this item repeals the definition of approved counselling organisation.
68. To ensure that professionals who are currently delivering family and child counselling and family and child mediation are able to continue to offer these services (which are termed 'family counselling' and 'family dispute resolution' under the Bill - see sections 10A and 10H in this Schedule) without interruption on the introduction of the accreditation regime a transition period is provided, during which the Attorney-General will continue to have power to approve organisations, as set out in Part 4 of this Schedule. (Item 118 provides that the transition period begins at the time Part 3 of this Schedule commences (this is a date to be fixed by Proclamation, and is expected to be 1 July 2006) and ends on the day prescribed by regulations made for the purpose of this definition. It is anticipated that the transition period will be at least three years in duration.)
Item 12: Subsection 4(1) (definition of approved mediation organisation)
69. Currently the Attorney-General may approve mediation organisations under section 13B of the Act. As set out in relation to section 10A, in order to ensure the quality of services delivered by family counsellors, family dispute resolution practitioners and workers in Government funded children's contact services, competency-based Accreditation Rules are currently being developed by the CSHISC. The Accreditation Rules will form the minimum requirements for family counsellors, family dispute resolution practitioners and workers in funded children's contact services and will largely replace the current situation where family and child counsellors are able to be authorised by approved organisations. As a result of this change, and the removal of the requirement for organisations to be approved before they may be funded under the Act due to the repeal of section 13H of the Act, approved organisations will no longer serve any purpose and will be removed from the Act by the Bill. Accordingly, this item repeals the definition of approved mediation organisation.
70. To ensure that professionals who are currently delivering family and child counselling and family and child mediation are able to continue to offer these services (which are termed 'family counselling' and 'family dispute resolution' under the Bill - see sections 10B and 10F in this Schedule) without interruption on the introduction of the accreditation regime a transition period is provided, during which the Attorney-General will continue to have power to approve organisations, as set out in Part 4 of this Schedule. (Item 118 provides that the transition period begins at the time Part 3 of this Schedule commences (this is a date to be fixed by Proclamation, and is expected to be 1 July 2006) and ends on the day prescribed by regulations made for the purpose of this definition. It is anticipated that the transition period will be at least three years in duration.)
Item 13: Subsection 4(1)
71. This item inserts a definition of 'arbitration' into Section 4 of the Act, the Interpretation section. The definition of 'arbitration' inserted here directs the reader to section 10S, where the full definition of the term is set out. This approach has been taken as the definition of arbitration is best read in context with the definition of 'arbitrator' (which appears in section 10T) and for consistency with the approach taken in relation to family counselling and family dispute resolution (at Divisions 1 and 2 of new Part II) . The marker definition has been placed in subsection 4(1) as those accessing the Act will often consult this general Interpretation section when seeking guidance on terms employed in the Act.
72. No substantive changes have been made to the arbitration provisions of the Act.
Item 14: Subsection 4(1) (definition of arbitrator )
73. This item repeals the current definition of 'arbitrator' and inserts a new definition of 'arbitrator' into Section 4 of the Act, the Interpretation section. The definition of 'arbitrator' inserted here directs the reader to section 10T, where the full definition of the term is set out. This approach has been taken as the definition of arbitrator is best read in context with the definition of 'arbitration' (which appears in section 10S) and for consistency with the approach taken in relation to family counselling and family dispute resolution (at Divisions 1 and 2 of new Part II). The marker definition has been placed in subsection 4(1) as those accessing the Act will often consult this general Interpretation section when seeking guidance on terms employed in the Act.
74. No substantive changes have been made to the arbitration provisions of the Act.
Items 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28 and 31: Subsection 4(1) (repeal definitions of child counselling, community mediator, court counsellor, court mediator, family and child counselling, family and child counsellor, family and child mediation, family and child mediator, marriage counselling, private mediator and insert definitions of family counselling, family counsellor, family dispute resolution, family dispute resolution practitioner)
75. At present the Act uses the umbrella term 'primary dispute resolution' to cover almost every form of non-judicial intervention in family conflicts, including counselling, mediation and arbitration. The term is poorly understood in the community and its use in the legislation makes it difficult to differentiate specific types of intervention.
76. To assist understanding, the Bill removes the term 'primary dispute resolution' and clearly identifies more specific forms of intervention. As part of this change, the terms in these items will be removed from the Act and new terms 'family counselling' (section 10A) and 'family dispute resolution' (section 10H) will be introduced.
77. The amendment made by these items add the definitions of 'family counselling', 'family counsellor', 'family dispute resolution' and 'family dispute resolution practitioner' to direct the reader to sections 10A, 10B, 10H and 10J respectively where the full definitions of the terms are set out. The marker definitions have been placed in subsection 4(1) as those accessing the Act will often consult this general Interpretation section when seeking guidance on terms employed in the Act.
Item 23: Subsection 4(1)
78. The court is moving to a process in which a 'family consultant' will be assigned to each case in the court involving children, and will manage the case, providing a continuing service, as it moves through the court process. The new Part III of the Bill deals with the functions of 'family consultants', who will be appointed by the Family Court of Australia, the Family Court of Western Australia or the Federal Magistrates Court.
79. This item inserts a definition of 'family consultant' into Section 4 of the Act, the Interpretation section. The definition of 'family consultant' inserted here directs the reader to section 11B, where the full definition of the term is set out. This approach has been taken as the definition of family consultant is best read in context with the functions of family consultants, so it appears in a section alongside this term. The marker definition has been placed in subsection 4(1) as those accessing the Act will often consult this general Interpretation section when seeking guidance on terms employed in the Act.
Item 29: Subsection 4(1)
80. 'Post-separation parenting program' is currently defined at subsection 65LA(3) and section 70NB of the Act. The current definition includes a reference to a list of 'post-separation parenting program providers' that is kept by the Attorney-General's Department. As this list has no relation to the quality of services provided, it has little value and is being removed from the Act. As a result the definition of 'post-separation parenting program' has been amended to remove the reference to 'a provider'. Instead the quality of services provided by post-separation parenting programs will be addressed by requiring these services to be funded by the Australian Government (whether directly or as a member of a consortium). Accountability requirements set out in the Government's funding agreements will assist in ensuring a level of quality in the services that are provided by organisations providing such post-separation parenting programs.
81. The new definition of 'post-separation parenting program' has been placed in subsection 4(1) as those accessing the legislation will often consult this general Interpretation section when seeking guidance on terms employed in the Act.
Item 30: Subsection 4(1) (definition of private arbitration)
82. Currently the Act refers to arbitration as 'private arbitration' and 'section 19D arbitration'. The term 'private arbitration' is not sufficiently explanatory, and may mislead, to the extent that it implies that the court has no involvement. In order to address these issues this item repeals the definition of 'private arbitration'. It is replaced by the term 'relevant property and financial arbitration', which is defined at paragraph 10S(2)(b). This new term assists understanding by clearly stating the types of issues that may be dealt with in arbitration.
Item 32: Subsection 4(1)
83. Currently the Act refers to arbitration as 'private arbitration' and 'section 19D arbitration'. The term 'private arbitration' is not sufficiently explanatory, and may mislead, to the extent that it implies that the court has no involvement. In order to address these issues the term 'private arbitration' is replaced by the term 'relevant property and financial arbitration'. This new term assists understanding by clearly stating the types of issues that may be dealt with in arbitration.
84. This item inserts a definition of 'relevant property or financial arbitration' into Section 4 of the Act, the Interpretation section. The definition of 'relevant property or financial arbitration' inserted here directs the reader to subsection 10S(2), where the full definition of the term is set out. This approach has been taken as the definition of 'relevant property or financial arbitration' is best read in context with the definition of 'arbitration' in order to be properly understood, so it appears in a section alongside these terms. The marker definition has been placed in subsection 4(1) as those accessing the Act will often consult this general Interpretation section when seeking guidance on terms employed in the Act.
85. No substantive changes have been made to the arbitration provisions of the Act.
Item 33: Subsection 4(1)
86. Currently the Act refers to arbitration as 'private arbitration' and 'section 19D arbitration'. The term 'private arbitration' is repealed by Item 30 and replaced by 'relevant property or financial arbitration', a definition of which is inserted by Item 27.
87. In order to simplify the Act, current Parts II and III of the Act are deleted and replaced by a new structure that groups provisions relating to non-judicial interventions logically, by topic. This restructure of the Act involves the repeal, modification, relocation and/or renumbering of current sections relating to counselling, dispute resolution and arbitration. As a result of this restructure section 19D has been removed from the Act. The substance of section 19D has been placed in new section 13E.
88. To reflect this change, this item inserts a definition of 'section 13E arbitration' into Section 4 of the Act, the Interpretation subsection 10S(2), where the full definition of the term is set out. This approach has been taken as the definition of 's13E arbitration' is best read in context with the definition of 'arbitration' in order to be properly understood, so it appears in a section alongside these terms. The marker definition has been placed in subsection 4(1) as those accessing the Act will often consult this general Interpretation section when seeking guidance on terms employed in the Act.
89. No substantive changes have been made to the arbitration provisions of the Act.
Item 34: Subsection 4(1) (definition of welfare officer)
90. The court is moving to a process in which a 'family consultant' will be assigned to each case in the court involving children, and will manage the case, providing a continuing service, as it moves through the court process. The new Part III of the Bill deals with the functions of 'family consultants', who will be appointed by the Family Court of Australia, the Family Court of Western Australia or the Federal Magistrates Court. The functions of family consultants are set out at section 11A. These functions include those that are currently performed by welfare officers (eg providing family reports). As a result, the definition of welfare officer is no longer needed, and is repealed by this item.
91. The Bill does not affect the role played by 'child welfare officers' (as defined at s60D of the Act) who provide child protection services for the States and Territories.
Item 35: After subsection 4(1)
92. This item inserts a definition of the phrase 'a person or people involved in proceedings' in subsection 4(1AA) of the Act. The Bill does not impose any obligations on 'people involved in proceedings'. The use of the term allows assistance to be given to people, including children, who may be affected by the proceedings, but who are not actually parties to the proceedings.
93. The phrase 'a person or people involved in proceedings' is used in the following provisions of the Bill:
- •
- Section 11A of the Act - provides that the functions of family consultants include 'assisting and advising' people involved in proceedings, and helping them to resolve their disputes.
- •
- Subsection 12F(2) of the Act - requires the principal executive officer of a court with jurisdiction under the Act to provide information documents on family counselling and family dispute resolution to a person involved in proceedings, if requested. (Under subsection 12F(1) the court has an obligation to give information documents to anyone considering instituting proceedings, without being asked to do so).
- •
- Subparagraph 123(1)(s)(iii) of the Act - allows rules of court to be made in relation to the giving of advice and assistance by family consultants (as per section 11A).
- •
- Subparagraph 123(1)(sd)(iii) of the Act - allows rules of court to be made in relation to the procedures to be followed by people involved in proceedings when receiving services from a family consultant (as per section 11A).
- •
- Paragraph 87(2)(c) of the Federal Magistrates Act 1999 - allows rules of court to be made for the Federal Magistrates Court in relation to the giving of advice and assistance by family consultants (as per section 11A of the Act).
Item 36: Parts II and III
94. In order to simplify the Act, Parts II and III of the Act are repealed and replaced by a new structure that groups provisions relating to non-judicial interventions logically, by topic. New Part II will deal with non-court based services (including accreditation, family counselling, family dispute resolution and arbitration). New Part III will deal court based services (also known as family consultants). New Part IIIA will deal with obligations to inform people about non-court based services and the court's procedures. New Part IIIB will set out the court's powers in relation to court and non-court based family services
95. This will assist users of the Act by consolidating all provisions dealing with a particular area (for example, the obligations imposed on various groups to inform people about non-judicial interventions available to assist those in the family law system) in one place within the Act.
Section 10A Accreditation Rules
96. In order to ensure the quality of services delivered by family counsellors, family dispute resolution practitioners and workers in Government funded children's contact services section 10A provides that the Regulations may set out Accreditation Rules relating to these workers.
97. Competency-based accreditation standards are currently being developed by the Community Services and Health Industry Skills Council (CSHISC) and are expected to form the minimum requirements for the standards in the Accreditation Rules to be met by family counsellors, family dispute resolution practitioners and workers in funded children's contact services.
98. The requirements of the Accreditation Rules will apply to individual practitioners and will replace the current situation where family and child counsellors and family and child mediators are either authorised by the court or an approved organisation.
99. To ensure that professionals who are currently delivering family and child counselling and family and child mediation are able to continue to offer these services (which are termed 'family counselling' an 'family dispute resolution' under the Bill - see sections 10B and 10F, above) without interruption on the introduction of the accreditation regime, a period of time, referred to as the 'transition period' will be given during which courts, approved organisations and organisations designated by the Attorney-General will be able to authorise family counsellors and family dispute resolution practitioners. Professionals so authorised will be taken to be accredited during the transition period.
100. In the transition period the Attorney-General will retain the ability to approve family counselling and family dispute resolution organisations (although the prerequisites for, and process of, approval, will be amended as per Part 4 of this Schedule). At the cessation of the transition period the concept of 'approved organisations' will be removed from the Act. From that time all family counsellors and family dispute resolution practitioners will need to meet the accreditation standards prescribed in the Regulations.
101. Subsection 10A(2) sets out examples of matters that the Accreditation Rules may deal with. It is expected that not all of the possible examples will form requirements for all categories of workers, or that all the listed examples will necessarily form part of the Regulations.
102. For example, it is expected that accredited family dispute resolution practitioners will need to be registered as the court and other services will need to know to whom they can refer clients to receive family dispute resolution. Accredited family dispute resolution practitioners are the only category of worker that will be able to provide certificates under section 60I of the Act. Section 60I provides that a court must not hear an application for a parenting order unless (subject to some exceptions) the applicant files a certificate from a family dispute resolution practitioner that states that the applicant has attended family dispute resolution, or that the applicant did not attend, but this failure was due to the failure of the other party to attend.
103. Similarly, only accredited family counsellors or family dispute resolution practitioners are able to provide the information required under section 60J (which provides that where a person is not required to attend dispute resolution due to child abuse or family violence, the court must not hear an application for a parenting order unless the applicant makes a declaration that a family counsellor or family dispute resolution practitioner has provided him or her with information on the services and options available).
104. As a result of the demand for family counselling and family dispute resolution services that may flow from these sections (and from the Government's family law reforms more broadly) unscrupulous professionals may seek to deceive members of the public as to their accreditation status. Protection of consumers from dishonest behaviour is always important, and is especially crucial in family law, as it is a highly emotional area in which people may not always be in a position to objectively or thoroughly assess the credentials of service providers. For this reason, the Accreditation Rules may deal with individuals or organisations who make false or misleading representations about a person's accreditation status.
Part II - Division 2 - Family counselling
Section 10B Definition of family counselling
105. Currently 'family and child counselling' contains elements of processes concerned both with psychological health and relationships issues and those that aim to resolve disputes (including conciliation - see section 10F for further information). The two types of processes needed to be clearly delineated in order to allow the successful introduction of compulsory dispute resolution (concerned only with resolution of disputes).
106. In order to achieve such a distinction, the Bill introduces two new, more descriptive terms - 'family counselling', inserted by this section and 'family dispute resolution' (defined at section 10F). The definition of 'family counselling' is based on the National Alternative Dispute Resolution Advisory Council's (NADRAC) 'Glossary of Terms'.
Section 10C Definition of family counsellor
107. Section 10C provides a definition of persons who may be regarded as family counsellors. The first instance is where a person is accredited as a family counsellor under the Accreditation Rules.
108. The Family Court of Australia, the Federal Magistrates Court and the Family Court of Western Australia will be able to authorise people to act as family counsellors, as will organisations designated by the Attorney-General.
109. To ensure that professionals who are currently delivering family and child counselling and family and child mediation are able to continue to offer these services without interruption Part 4 of Schedule 4 provides for transitional arrangements.
110. Under subsection 10C(2) the Attorney-General is required to publish, at least annually, a list of the organisations that he or she has designated under paragraph 10C(1)(b). This provision ensures that the public is able to easily access this information, in the interests of transparency.
111. Subsection 10C(3) provides that an instrument made under this section is not a legislative instrument. A 'legislative instrument' is defined at section 5 of the Legislative Instruments Act 2003. In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subsection 10C(3) has been included to assist readers of the Act, so that they are aware that the requirements of imposed by the Legislative Instruments Act do not apply to instruments made under this section.
Section 10D Confidentiality of communications in family counselling
112. Currently section 19 of the Act requires family and child counsellors to make on oath or affirmation of secrecy. The form of this oath or affirmation is set out at regulation 58 of the Family Law Regulations 1984. This section combines these existing provisions to simplify the Act and, by moving the terms of the oath or affirmation into the primary legislation, emphasises the importance of confidentiality.
113. New section 10D aims to clarify when communications made in family counselling must or may be disclosed.
114. Recognising the importance of confidentiality to the success of family counselling, subsection 10D(1) provides that a family counsellor must not disclose a communication made in family counselling unless the disclosure is required or authorised under the section.
115. In order to provide guidance to family counsellors the section delineates the circumstances in which disclosure is mandatory from those circumstances in which disclosure may occur, at the discretion of the family counsellor. The Government considers that it is only appropriate to mandate disclosure of communications where the body or individual to whom communications are to be disclosed is able to be prescribed in the legislation. As a result, disclosure of communications made in family counselling is mandatory where the family counsellor reasonably believes that the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
116. The situations in which a family counsellor may disclose a communication made in family counselling are set out at subsection 10D(4). These situations include the situation where the family counsellor reasonably believes that the disclosure is necessary for the purpose of protecting a child from the risk of physical or psychological harm (paragraph 10D(4)(a)). As is the case in relation to the concept of harm employed in section 68F of the Act, the physical or psychological harm referred to here encompasses sexual harm.
117. Subsection 10D(3) enables a family counsellor to disclose a communication, with the consent of the party who made the disclosure, where that person is an adult, or, where the disclosure was made by a child who is under 18, both parents must consent to the disclosure. If agreement cannot be reached the matter may be referred to the court for decision. This situation is similar to that which operates in relation to parentage testing, under section 69W of the Act.
118. The ability to disclose communications, with consent, will assist the people participating in family counselling in a number of ways. For example, if a person consents to the disclosure of information when the family counsellor is making a referral to another professional, this will ensure that clients will not need to relate the details of their circumstances each time they see a different professional.
119. Subsection 10D(5) allows a family counsellor to make disclosures in order to provide information for research relevant to families, as long as the information provided does not constitute 'personal information' as defined in section 6 of the Privacy Act 1988. 'Personal information' is information or an opinion from which an individual's identity is apparent, or can reasonably be ascertained.
120. Subsection 10D(6) clarifies that information that is inadmissible as evidence due to the effect of section 10E, does not become admissible merely because a family counsellor is required or authorised to disclose that information under subsections 10D(2) to (5). The Note to this subsection clarifies that the counsellor's evidence is inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to disclose it in other circumstances.
121. Subsection 10D(7) clarifies that information necessary for the provision of a certificate by a family counsellor under paragraph 16(2A)(a) of the Marriage Act 1961 is not prevented by this provision.
122. Section 16 of the Marriage Act 1961 deals with the ability of judges to consent to the marriage of a minor in circumstances where consent has been refused by the minor's parents. Paragraph 16(2A)(a) provides that the judge must not consider the minor's request for consent unless there is a signed certificate from a family counsellor stating that the minor has received counselling in relation to the proposed marriage. Subsection 10D(7) ensures that the family counsellor will not be considered to have breached confidentiality requirements if they provide such a certificate.
123. Subsection 10D(8) clarifies that, in section 10D, communication includes admission.
Section 10E Admissibility of communications in family counselling and in referrals from family counselling
124. Currently, the admissibility into evidence of communications and admissions made in family and child counselling and family and child mediation, or in a professional consultation pursuant to a referral by a family and child counsellor or family and child mediator, is addressed by section 19N of the Act.
125. Section 10E largely recreates section 19N, to the extent that that section relates to family counsellors. Subsection 10E(1) provides that a communication made in family counselling is not admissible in any court or proceedings, in any jurisdiction.
126. Subsection 10E(1) also provides that a communication made when a professional consultation is being carried out on referral from a family counsellor is also inadmissible in any court or proceedings, in any jurisdiction. In order to ensure that professionals to whom family counsellors make referrals are aware of the inadmissible status of communications made to them, subsection 10E(4) requires the family counsellor to inform them of this fact when making a referral.
127. As is the case under current section 19N, an admission or disclosure that indicates that a child under 18 has been abused or is at risk of abuse may be admitted as evidence, unless there is sufficient evidence of the admission or disclosure available to the court from other sources.
128. Subsection 10E(3) clarifies that the information necessary for the provision of a certificate by a family counsellor under paragraph 16(2A)(a) of the Marriage Act 1961 is not prevented by this provision.
129. Section 16 of the Marriage Act 1961 deals with the ability of judges to consent to the marriage of a minor in circumstances where consent has been refused by the minor's parents. Paragraph 16(2A)(a) provides that the judge must not consider the minor's request for consent unless there is a signed certificate from a family counsellor stating that the minor has received counselling in relation to the proposed marriage. Subsection 10D(7) ensures that the family counsellor will not be considered to have breached confidentiality requirements if they provide such a certificate.
Part II - Division 3 - Family Dispute Resolution
Section 10F Definition of family dispute resolution
130. The introduction of compulsory attendance at a dispute resolution process, prior to applying to the court for an order under Part VII of the Act (subject to some exceptions), under new section 60I (see Item 9 of Schedule 1) necessitates the differentiation of processes that aim to resolve disputes from those that are focused on psychological health and relationship issues. In order to achieve its objectives (as set out at x), it is critical that section 60I can only be satisfied by attendance at a process that is genuinely concerned with resolving disputes. Thus it is imperative that such processes are distinguished from processes concerned with personal/ relationship healing.
131. Currently, Part V of the Regulations provides that the family and child mediator's role does not include the provision of advice (see paragraph 63(1)(c)). As a result, dispute resolution processes that include the provision of advice (such as conciliation) are currently regarded as a form of 'family and child counselling'. This is problematic, as counselling and dispute resolution need to be clearly delineated in order to allow the successful introduction of compulsory dispute resolution. The definitions of 'family counselling' and 'family dispute resolution' achieve a clear differentiation of the two processes.
132. The definition of 'family dispute resolution' is based on NADRAC's 'Glossary of Terms'.
Section 10G Definition of family dispute resolution practitioner<
133. Section 10G provides a definition of persons who may be regarded as family dispute resolution practitioners. The first instance is where a person is accredited as a family dispute resolution practitioner under the Accreditation Rules.
134. The Family Court of Australia, the Federal Magistrates Court and the Family Court of Western Australia will be able to authorise people to act as family dispute resolution practitioners, as will organisations designated by the Attorney-General.
135. To ensure that professionals who are currently delivering family and child counselling and family and child mediation are able to continue to offer these services Part 4 of Schedule 4 provides for transitional arrangements
136. Under subsection 10G(2) the Attorney-General is required to publish, at least annually, a list of the organisations that he or she has designated under paragraph 10G(1)(b). This provision ensures that the public is able to easily access this information, in the interests of transparency.
137. Subsection 10G(3) provides that an instrument made under this section is not a legislative instrument. A 'legislative instrument' is defined at section 5 of the Legislative Instruments Act 2003. In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subsection 10G(3) has been included to assist readers of the Act, so that they are aware that the requirements of imposed by the Legislative Instruments Act do not apply to instruments made under this section.
Section 10H Confidentiality of communications in family dispute resolution
138. Currently family and child mediators authorised by approved organisations or the courts are required by section 19K of the Act to make on oath or affirmation of secrecy. The form of this oath or affirmation is set out at regulation 66 of the Family Law Regulations 1984. Other family and child mediators (that is, those who are not authorised by an approved organisation or court but who meet the regulatory requirements for family and child mediators, referred to as 'private mediators') have a duty of confidentiality under regulation 67. This duty of confidentiality requires private mediators to adhere to the same requirements as set down in the oath in regulation 66 of the Regulations. Section 10H combines these existing provisions to simplify the Act and, by moving the terms of the oath or affirmation into the primary legislation, emphasise the importance of confidentiality. The section also aims to clarify when communications made in family dispute resolution must or may be disclosed.
139. Recognising the importance of confidentiality to the success of family dispute resolution, subsection 10H(1) provides that a family dispute resolution must not disclose a communication made in family dispute resolution unless the disclosure is required or authorised under this section.
140. In order to provide guidance to family dispute resolution practitioners this section delineates the circumstances in which disclosure is mandatory from those circumstances in which disclosure may occur, at the discretion of the family dispute resolution practitioner. The Government considers that it is only appropriate to mandate disclosure of communications where the body or individual to whom communications are to be disclosed is able to be prescribed in the legislation. As a result, disclosure of communications made in family dispute resolution is mandatory where the family dispute resolution practitioner reasonably believes that the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
141. The situations in which a family dispute resolution practitioner may disclose a communication made in family dispute resolution are set out at subsection 10H(4). These situations include the situation where the family dispute resolution practitioner reasonably believes that the disclosure is necessary for the purpose of protecting a child from the risk of physical or psychological harm (paragraph 10H(4)(a)). As is the case in relation to the concept of harm employed in section 68F of the Act, the physical or psychological harm referred to here encompasses sexual harm.
142. Subsection 10H(3) enables a family dispute resolution practitioner to disclose a communication, with the consent of the party who made the disclosure, where that person is an adult, or, where the disclosure was made by a child who is under 18, both parents must consent to the disclosure. If agreement cannot be reached the matter may be referred to the court for decision. This situation is similar to that which operates in relation to parentage testing, under section 69W of the Act.
143. The ability to disclose communications, with consent, will assist the people participating in family dispute resolution in a number of ways. For example, if a person consents to the disclosure of information when the family dispute resolution practitioner is making a referral to another professional, this will ensure that clients will not need to relate the details of their story each time they see a different professional.
144. Subsection 10H(5) allows a family dispute resolution practitioner to make disclosures in order to provide information for research relevant to families, as long as the information provided does not constitute 'personal information' as defined in section 6 of the Privacy Act 1988. 'Personal information' is information or an opinion from which an individual's identity is apparent, or can reasonably be ascertained.
145. Subsection 10H(6) clarifies that the provision of a certificate by a family dispute resolution practitioner under subsection 60I(8) is not prevented by the confidentiality requirement.
146. Subsection 60I(8) (see Schedule 1) provides that a court must not hear an application for a parenting order unless (subject to some exceptions) the applicant files a certificate from a family dispute resolution practitioner that states either: that the applicant has attended family dispute resolution and that all attendees made a genuine effort to resolve the dispute; that the applicant has attended family dispute resolution but that one or more of the attendees did not make a genuine effort to resolve the dispute; or that the applicant did not attend, but this failure was due to the failure of the other party to attend.
147. Subsection 10H(7) clarifies that information that is inadmissible as evidence due to the effect of section 10J, does not become admissible merely because a family dispute resolution practitioner is required or authorised to disclose that information under subsections 10H(2) to (5).
148. Subsection 10H(8) clarifies that, in section 10H, communication includes admission.
Section 10J Admissibility of communications in family dispute resolution and in referrals from family dispute resolution
149. Currently, the admissibility into evidence of communications and admissions made in family and child counselling and family and child mediation, or in a professional consultation pursuant to a referral by a family and child counsellor or family and child mediator, is addressed by section 19N of the Act.
150. Section 10J largely recreates section 19N, to the extent that that section relates to family dispute resolution practitioners. Subsection 10L(1) provides that a communication made in family dispute resolution is not admissible in any court or proceedings, in any jurisdiction.
151. Subsection 10J(1) also provides that a communication made when a professional consultation is being carried out on referral from a family dispute resolution practitioner is also inadmissible in any court or proceedings, in any jurisdiction. In order to ensure that professionals to whom family dispute resolution practitioners make referrals are aware of the inadmissible status of communications made to them, subsection 10J(4) requires the family dispute resolution practitioner to inform them of this fact when making a referral.
152. As is the case under current section 19N, an admission or disclosure that indicates that a child under 18 has been abused or is at risk of abuse may be admitted as evidence, unless there is sufficient evidence of the admission or disclosure available to the court from other sources.
153. Subsection 10J(3) clarifies that the provision of a certificate by a family dispute resolution practitioner under subsection 60I(8) is not prevented by this provision.
154. Subsection 60I(8) (see Schedule 1) provides that a court must not hear an application for a parenting order unless (subject to some exceptions) the applicant files a certificate from a family dispute resolution practitioner that states that the applicant has attended family dispute resolution, or that the applicant did not attend, but this failure was due to the failure of the other party to attend.
10K Family dispute resolution practitioners must comply with regulations
155. As a result of the restructuring of Parts II and III of the Act, section 19P has been removed from the Act. The substance of section 19P has been placed in new section 10K.
156. Section 10K provides that the regulations may prescribe requirements to be complied with by family dispute resolution practitioners in relation to the family dispute resolution services that they provide. Currently the Regulations require family and child mediators to:
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- have suitable qualifications, training and experience (regulation 60)
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- fulfil continuing training requirements (regulation 61)
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- before providing mediation, conduct an assessment of the parties to a dispute to determine whether mediation is appropriate, and if the mediator considers that mediation is inappropriate, must not provide it (regulation 62)
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- provide written information to the parties, at least one day prior to the mediation (regulation 63)
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- ensure that the mediation process is suited to the needs of the parties (regulation 64)
- •
- not provide mediation in cases where the mediator has a conflict of interest (regulation 65), and
- •
- not use any information acquired from a mediation for personal gain (regulation 65).
157. During the transition period the regulations made under this section imposing requirements on family dispute resolution practitioners will continue to apply. These regulations will be amended shortly to reflect the new terminology introduced by the Bill).
158. As currently applies under section 19P of the Act, section 10K provides that the regulations may prescribe penalties not exceeding 10 penalty units for offences against the regulations made under this section. (The value of a 'penalty unit' is set out at section 4AA of the Crimes Act 1914. It is currently $110. Thus the maximum penalty that could be prescribed in the regulations pursuant to this provision is a fine of $1,100).
Part II - Division 4 - Arbitration
Section 10L Definition of arbitration
159. Currently the Act does not contain a definition of 'arbitration', which poses problems for users of the Act who are unfamiliar with the term. The definition of arbitration inserted here is taken from NADRAC's 'Glossary of Common Terms'.
160. At present the Act refers to arbitration as 'private arbitration' and 'section 19D arbitration'. The term 'private arbitration' is not sufficiently explanatory, and may mislead, to the extent that it implies that the court has no involvement. In order to address these issues the term 'private arbitration' is replaced by the term 'relevant property and financial arbitration'. This new term assists understanding by clearly stating the types of issues that may be dealt with in arbitration.
161. In order to simplify the Act, current Parts II and III of the Act are deleted and replaced by a new structure that groups provisions relating to non-judicial interventions logically, by topic. This restructure of the Act involves the repeal, modification, relocation and/ or renumbering of current sections relating to counselling, dispute resolution and arbitration. As a result of this restructure section 19D has been removed from the Act. The substance of section 19D has been placed in new section 13E. To reflect this change, what is currently referred to as 'section 19D arbitration' is now termed 'section 13E arbitration'.
162. No substantive changes have been made to the arbitration provisions of the Act.
Section 10M Definition of arbitrator
163. The definition of 'arbitrator' is unchanged from the current definition at subsection 4(1) of the Act, except that it specifically refers to the fact that the 'prescribed requirements' for arbitrators will be set out in the Regulations, which should assist users of the Act.
164. No substantive changes have been made to the arbitration provisions of the Act.
Section 10N Arbitrators may charge fees for their services
165. This provision reproduces current section 19H of the Act. Section 19H has been removed from the Act as a result of the restructure which deletes current Parts II and III of the Act are deleted and replaces them with a new structure that groups provisions relating to non-judicial interventions logically, by topic.
166. This section permits arbitrators to charge fees for their services and requires them to provide written information to the parties about those fees before the arbitration commences.
167. No substantive changes have been made to the arbitration provisions of the Act.
Section 10P Immunity of arbitrators
168. This provision reproduces current section 19M of the Act. Section 19M has been removed from the Act as a result of the restructure which deletes current Parts II and III of the Act are deleted and replaces them with a new structure that groups provisions relating to non-judicial interventions logically, by topic.
169. This section provides that an arbitrator has, in performing his or her functions as an arbitrator, the same protection and immunity as a Judge of the Family Court has in performing the functions of a Judge.
170. An arbitrator makes a determination (referred to as an 'award') on a dispute, based on the arguments and evidence put to him or her. The arbitrator's award may be registered in a court (pursuant to section 13H). If an award is registered in this way, it has effect as if it were a decree made by the court in which it is registered. As a result, an arbitrator requires immunity both to preserve the integrity of his or her determination and to ensure that arbitrators are able to make determinations independently and on the basis of their unbiased opinion, without apprehension of personal consequences.
171. No substantive changes have been made to the arbitration provisions of the Act.
Part III - Family consultants
Division 1 - About family consultants
Section 11A Functions of family consultants
172. The role of the courts with jurisdiction under the Act in delivering counselling and dispute resolution services is likely to change. The court's delivery of these services is expected to decrease in parallel with the increasing provision of these services by the community sector.
173. The courts are moving to a process in which a 'family consultant' will be assigned to each case in the court involving children, and will manage the case, providing a continuing service, as it moves through the court process. Part III of the Bill deals with the functions of 'family consultant', who will be appointed by the Family Court of Australia, the Family Court of Western Australia or the Federal Magistrates Court.
174. The primary distinction between 'family counsellors' and 'family dispute resolution practitioners' (who mainly provide services in the community) on the one hand, and court-based 'family consultants' on the other, is that the former will provide confidential services. Therefore evidence of anything said or any admissions made during those processes will be inadmissible. The services provided by 'family consultants' will not be protected by confidentiality and evidence of things that are said to a family consultant will be admissible in court provided the person concerned has been informed that disclosures made to family consultants are admissible. Even if a person has not been informed that their statements or disclosures will be admissible, special considerations will apply in cases that involve child abuse.
175. This approach will help to make it clearer when court staff or persons engaged by the court are providing confidential/inadmissible services and when they are not. Under the Act in its present form court staff or persons engaged by a court may provide confidential or non-confidential services but do so under the title mediators, counsellors or welfare officers. Under the Bill the title of the person who provides court services will differ depending upon whether the process is confidential or not and people will need to be informed when statements made in a process will be admissible in court. This will assist in addressing the confusion that exists among the public as to the roles performed by the two sectors and the appropriate place to seek different forms of assistance.
176. Section 11A specifies a number of the functions to be performed by family consultants, which include:
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- assisting and advising people involved in the proceedings (eg. grandparents) by, for example, providing expert advice on the effect on children of different ages of separation from a grandparent who has been a major caregiver to the child.
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- assisting and advising courts, and giving evidence in relation to the proceedings. For example, a family consultant may assist the court by providing expert evidence on an issue raised in the case, such as how a child's age may affect his or her perception of a parental separation.
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- helping people involved in the proceedings (eg. grandparents) to resolve disputes that are the subject of the proceedings by, for example, suggesting possible solutions that take into account the positions of both parties, or providing examples of how other people have dealt with similar problems.
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- reporting to the court in certain circumstances including where, in divorce proceedings the court doubts whether the arrangements made for welfare and development of the children of the marriage are proper in all the circumstances, the court may adjourn the proceedings in order to obtain a report from a family consultant.
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- advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to proceedings. The court may seek this advice from a family consultant (in the case of the Family Court of Australia, the Federal Magistrates Court or the Family Court of Western Australia) or an appropriately qualified professional, either within the court or outside it (such as a professional employed by a Family Relationship Centre).
Section 11B Definition of family consultant
177. Section 11B explains that a 'family consultant' is a person who is appointed:
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- as an officer of the Family Court of Australia under paragraph 38N(1)(d) of the Act (paragraph 11B(a))
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- in relation to the Federal Magistrates Court under paragraph 99(1)(f) of the Federal Magistrates Act 1999 (paragraph 11B(b))
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- appointed as a family consultant in relation to the Family Court of Australia under the Regulations (paragraph 11B(c)), or
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- in relation to the Family Court of Western Australia (paragraph 11B(d)).
178. Section 38BA, at item 32 of this Schedule, provides that the Chief Executive Officer of the Family Court of Australia has all the functions conferred on family consultants by section 11A, and any associated powers and duties. Section 38BC allows the Chief Executive Officer of the Family Court of Australia to give directions to an officer of that court that relate to the officer's functions as a family consultant. The Note to section 11B draws attention to these provisions.
179. Similarly, section 93A of the Federal Magistrates Act 1999, at item 106 of this Schedule, provides that the Chief Executive Officer of the Federal Magistrates Court has all the functions conferred on family consultants by section 11A of the Act, and any associated powers and duties. Section 93C allows the Chief Executive Officer of the Federal Magistrates Court to give directions to an officer of that court that relate to the officer's functions as a family consultant. The Note to section 11B draws attention to these provisions.
Section 11C Admissibility of communications with family consultants and referrals from family consultants
180. The primary distinction between 'family counsellors' and 'family dispute resolution practitioners'(who mainly provide services in the community) on the one hand, and court-based 'family consultants' on the other, is that the former will provide confidential services and evidence of anything said or any admissions made during those processes will be inadmissible.
181. The services provided by 'family consultants' will not be protected by confidentiality and evidence of things that are said to a family consultant will be admissible in proceedings under the Act, provided the person concerned has been informed that disclosures made to family consultants are admissible.
182. A communication made when a professional consultation is being carried out on referral from a family consultant is also admissible in proceedings under the Act, provided that the person concerned has been informed that such disclosures are admissible.
183. Note 2 clarifies that the fact that subsection 11C(1) provides that communications with a family consultant or with a professional to whom a person has been referred by a family consultant are admissible in proceedings under this Act should not be interpreted as implying that such communications are inadmissible in other proceedings (such as, for example, criminal proceedings).
184. Subsection 11C(3) provides that even in cases where a person has not been informed that communications with a family consultant or with a professional to whom a person has been referred by a family consultant are admissible, communications that indicate that a child under 18 has been abused or is at risk of abuse may be admitted as evidence, unless there is sufficient evidence of the admission or disclosure available to the court from other sources. This reflects current section 19N of the Act, and sections 10E and 10J of this Schedule, which relate to the admissibility of communications in family counselling and family dispute resolution, respectively.
Section 11D Immunity of family consultants
185. This section provides that a family consultant has, in performing his or her functions as a family consultant, the same protection and immunity as a Judge of the Family Court has in performing the functions of a Judge.
186. Family consultants require immunity as their work, as set out at 11A, will directly feed into the court's decision-making process. If the family consultants did not have immunity, people who were unhappy with the court's decision could endeavour to attack the foundations of that decision by challenging the family consultants. Any problems with the court's decisions should be dealt with directly through the appeals process.
Division 2 - Courts' use of family consultants
Section 11E Courts to consider seeking advice from family consultants
187. Part IIIB of the Act, inserted by this Schedule, sets out the power of courts exercising jurisdiction under the Act to order, or advise, people to attend family services, either court-based or non-court, that are appropriate to their needs.
188. Section 11E aims to ensure that the court makes orders that are appropriate to the circumstances and needs of the parties, and which take into account the family services available in different areas. The section provides that where a court has the power to order a person to attend family counselling, family dispute resolution, a course, program or service, or an appointment with a family consultant, it may seek the advice of either a family consultant (if it is a Court that has family consultants - that is, the Family Court of Australia, the Federal Magistrates Court or the Family Court of Western Australia) or an appropriately qualified professional, either within the court or outside it (such as a person employed by a Family Relationship Centre). The section aims to ensure that the court makes orders that are appropriate to the circumstances and needs of the parties, and which take into account the family services available in different areas.
189. To emphasise the importance of making orders that are tailored to the individual's requirements, the court must consider seeking such professional advice before making a relevant order.
190. In order to ensure the transparency of court processes, subsection 11E(2) provides that if, when making a referral, the court seeks the advice of a family consultant or other professional, the person or people being referred must be informed of the person from whom the court is seeking advice and the nature of the advice being sought.
Section 11F Court may order parties to attend appointments with a family consultant
191. Section 11F allows a court exercising jurisdiction in proceedings under the Act to order one or more of the parties to the proceedings to attend one or appointments with a family consultant. The court would make such an order where it considers that one or more of the parties would benefit from the services that a family consultant is able to provide. The functions performed by family consultants are set out at section 11A and include assisting and advising people involved in the proceedings (paragraph 11A(a)) and helping people involved in proceedings to resolve disputes (paragraph 11A(c)).
192. The Note following subsection 11F(1) reminds the court that, before ordering one or more of the parties to attend appointments with a family consultant, it is required, under section 11E, to consider seeking the advice of a family consultant or other appropriately qualified professional as to the services appropriate to the needs of the person and being referred and the most appropriate provider of those services.
193. Subsection 11F(2) provides that when ordering parties to attend an appointment with a family consultant, the court must inform the parties of the effect of section 11G. Subsection 11G(1) provides that if a person has been ordered, by the court, to attend an appointment with a family consultant and either does not attend the appointment, or does not comply with an instruction that the family consultant gives to him or her, the family consultant must report this to the court. If such a report is made to the court, subsection 11G(2) allows the court to make any further orders that it considers appropriate.
194. Subsection 11F(3) provides that the court may make an order directing parties to attend an appointment with a family consultant on its own initiative, or when an application is made by one of the parties to the proceeding, or by a lawyer who is independently representing the interests of a child involved in the case, under section 68L. (Section 68L provides that in proceedings under the Act in which a child's best interests or welfare is the paramount, or a relevant, consideration, a court may order that the child's interests are to be independently represented by a lawyer).
Section 11G Consequences of failure to comply with order under section 11F
195. Section 11F allows a court exercising jurisdiction in proceedings under the Act to order one or more of the parties to the proceedings to attend one or appointments with a family consultant.
196. If a court, under section 11F, orders a person to attend an appointment with a family consultant and that person fails to comply with that order, or attends the appointment as ordered but does not comply with an instruction that the family consultant gives to the person (for example, if the family consultant instructed the person to seek counselling for drug or alcohol related problems), the family consultant must, under subsection 11G(1), report that failure to the court.
197. Subsection 11G(2) provides that when a court receives such a report it may make any further orders that it considers appropriate. For example if the person has refused to comply with a family consultant's instructions to treat the other party in a civil manner when discussions are taking place involving the family consultant, the court might consider it appropriate to order the person to attend a course or program that informs participants of the effects that high levels of parental conflict have on children.
198. Subsection 11G(3) provides that the court may make an order under subsection 11G(2) on its own initiative, or when an application is made by one of the parties to the proceeding, or by a lawyer who is independently representing the interests of a child involved in the case, under section 68L. (Section 68L provides that in proceedings under the Act in which a child's best interests or welfare is the paramount, or a relevant, consideration, a court may order that the child's interests are to be independently represented by a lawyer).
Part IIIA - Obligations to inform people about non-court based family services and about court's processes and services
Division 1 - Introduction
Section 12A Objects of this Part
199. To implement the Government's policy of encouraging people considering, or affected by separation or divorce to utilise non-court counselling and dispute resolution services, Part IIIA of the Act ensures people receive useful information on these services, as well as information about the court's processes and services, early in the process of separation or divorce. The provision of such information at an early stage may assist the people involved to address issues before they become entrenched, which should improve the possibility of the parties resolving the dispute without court intervention.
200. Section 12A set out the objects of new Part IIIA of the Act. These objects centre around ensuring that people who are considering separation or divorce, or who are affected, or are likely to be affected by separation and divorce are made aware of the services available to assist them, the options available to them (for example, reaching agreement on matters in dispute with the assistance of a family dispute resolution practitioner, or applying to the court to make an order), and the consequences attendant on these options.
Division 2 - Kind of information to be provided
Section 12B Prescribed information about non-court based family services and court's processes and services
201. Subsection 12B(1) provides that the Regulations may prescribe information relating to non-court based family services and the court's processes and services, which is to be included in the documents provided under this Part. These documents are required to be provided, in appropriate cases, by legal practitioners (under subsections 12E(1) and 12E(3)) and the principle executive officer of a court with jurisdiction under the Act (under subsection 12F(1)).
202. Subsection 12B(2) sets out a number of issues that any information on the non-court based family services and the court's processes and services that is prescribed in the Regulations pursuant to subsection 12B(1) must include. This does not prevent other issues being addressed in the prescribed information.
Section 12C Prescribed information about reconciliation
203. Section 12C provides that the Regulations may prescribe information relating to services available to help with a reconciliation between the parties to a marriage, which is to be included in the documents provided under this Part. These documents are required to be provided, in appropriate cases, by legal practitioners (under subsection 12E(2)), the principle executive officer of a court with jurisdiction under the Act (under subsection 12F(1)), and family counsellors, family dispute resolution practitioners and arbitrators (under subsection 12G(1)).
Section 12D Prescribed information about Part VII proceedings
204. Subsection 12D(1) provides that the Regulations may prescribe information that is to be included in documents provided under this Part to people involved in child-related proceedings (that is, proceedings under Part VII of the Act). These documents are required to be provided, in appropriate cases, by legal practitioners (under subsection 12E(3)) and the principle executive officer of a court with jurisdiction under the Act (under subsection 12F(1) - not in as yet - see Bill).
205. Subsection 12D(2) provides that any information to be provided to people involved in child-related proceedings that is prescribed in the Regulations pursuant to subsection 12D(1) must include information about the family counselling services available to assist the parties, and the child or children concerned, to adjust to orders made under Part VII (for example, parenting orders). This does not prevent other issues being addressed in the prescribed information.
Division 3 - Who must provide information, and when
Section 12E Obligations on legal practitioners
206. Section 12E places obligations on legal practitioners to provide information to people by whom they are consulted, or who they are representing in proceedings. This information is to be provided in the form of documents, which should ensure that the task of providing information is not onerous. The obligations imposed under this section build on requirements that currently exist in the Act.
207. Subsection 12E(1) requires a legal practitioner who is consulted by a person who is considering instituting proceedings under the Act to give that person documents containing the information prescribed in the Regulations pursuant to section 12B.
208. Subsection 12E(2) requires a legal practitioner who is consulted by, or who is representing, a married person who is a party to proceedings for a divorce order, or financial or Part VII proceedings (i.e. proceedings about children), to give that person documents containing the information prescribed in the Regulations pursuant to section 12C.
209. A legal practitioner does not have to provide these documents if he or she has reasonable grounds to believe that the person has already been given these documents (subsection 12E(4)), or if he or she considers that there is no reasonable possibility of a reconciliation between the parties to the marriage (subsection 12E(5)).
210. Subsection 12E(3) requires a legal practitioner who is representing a party in proceedings under Part VII (i.e. proceedings about children), to give that person documents containing the information prescribed in the Regulations pursuant to section 12D.
211. A legal practitioner does not have to provide these documents if he or she has reasonable grounds to believe that the person has already been given these documents (subsection 12E(4)).
212. Section 63DA of the Act (at item 18 of Schedule 1 of the Bill) also imposes information provision obligations on legal practitioners who are dealing with people involved in proceedings under Part VII of the Act (i.e. proceedings concerning children).
Section 12F Obligations on principal executive officers of courts
213. Section 12F places information provision obligations on the principal executive officer of a court with jurisdiction under the Act. The relevant information is to be provided in the form of documents, and must be provided on the first occasion that the person deals with the registry of the court. The principal executive officer of a relevant court may delegate the actual provision of documents to staff as accords with the administrative arrangements operating in the different courts. The information relates to non-court based services and resconciliation.
214. Subsection 12F(2) requires the principal executive officer of a court with jurisdiction under the Act to ensure that, if a person involved in proceedings under the Act asks for information about family counselling services or family dispute resolution services from an officer or staff member of the court, the person is given documents containing information about those services. 'People involved in proceedings' is defined at subsection 4(1AA) at item 35 of this Schedule. No obligations are imposed on 'people involved in proceedings'. Instead, the use of the term allows assistance to be given to people, including children, who may be affected by the proceedings, but are not actually parties to the proceedings.
215. The obligations imposed under section 12F build on the obligations currently imposed on court staff under sections 17, 19J and 62H and subsection 62B(2).
Section 12G Obligations on family counsellors, family dispute resolution practitioners and arbitrators
216. Section 12G obliges family counsellors, family dispute resolution practitioners and arbitrators who deal with a married person who is considering instituting proceedings for a divorce order, or financial or Part VII proceedings (i.e. proceedings about children), to give that person (and, in appropriate cases, that person's spouse) documents containing the information prescribed in the Regulations pursuant to section 12C. Section 12C provides that the Regulations may prescribe information relating to services available to help with a reconciliation between the parties to a marriage, which is to be included in the documents provided under this Part.
217. This builds on the current provisions in the Act that only require judges and legal practitioners to consider the possibility of a reconciliation of the parties.
218. A family counsellor, family dispute resolution practitioner or arbitrator does not have to provide this document if he or she has reasonable grounds to believe that the person has already been given these documents (paragraph 12G(2)(a)), or if he or she considers that there is no reasonable possibility of a reconciliation between the parties to the marriage (paragraph 12G(2)(b)).
219. A Note is provided in the section to reflect that before advising the parties, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs.
220. Section 63DA of the Act (at item 18 of Schedule 1 of the Bill) also imposes information provision obligations on family counsellors and family dispute resolution practitioners who are dealing with people involved in proceedings under Part VII of the Act (i.e. proceedings concerning children).
Part IIIB - Court's powers in relation to court and non-court based family services
Division 1 - Introduction
Section 13A Objects of this Part
221. To implement the Government's policy of encouraging people considering, or affected by separation or divorce to utilise counselling, dispute resolution, arbitration and other services, Part IIIB of Schedule 4 facilitates, and encourages, access to these services and gives courts with jurisdiction under the Act power to require parties to proceedings to attend appropriate services. This section sets out the objects of Part IIIB.
Division 2 - Help with reconciliation
Section 13B Court to accommodate possible reconciliations
222. Subsection 13B(1) provides that a court exercising jurisdiction in proceedings for a divorce order, or financial or Part VII proceedings (i.e. proceedings about children) instituted by a party to a marriage, must, from time to time, consider the possibility of a reconciliation between the parties to the marriage. This subsection reproduces current subsection 14C(1) of the Act.
223. Subsection 13B(2) provides that if the court considers, from the evidence in the proceedings or the attitude of the parties to the marriage, that there is a reasonable possibility of a reconciliation between the parties, the court may adjourn the proceedings to give the parties the opportunity to consider a reconciliation. This subsection reproduces current subsection 14C(2) of the Act, except to the extent that that subsection allows a judge, if he or she considers that there is a reasonable possibility of a reconciliation of the parties, to interview the parties in chambers to assist in that reconciliation. Following consultation with the courts this ability has been removed, as it is felt that this role is better performed by a person specifically trained as a counsellor.
224. Subsection 13B(3) provides that if proceedings are adjourned to give the parties an opportunity to consider a reconciliation, the court must advise the parties to attend a family counselling organisation, or other appropriate person or organisation. This subsection reflects the Government's belief that reconciliation of parties to a marriage should be encouraged wherever appropriate and that it is important that people considering a reconciliation are given the most appropriate expert assistance. The parties are not obliged to act on the court's recommendation under this subsection, but it is appropriate that they are made aware of, and advised to use, relevant available services.
225. The Note following subsection 13B(3) reminds the court that, before advising the parties to attend family counselling or another appropriate person or organisation under subsection 13B(2), it is required, under section 11E, to consider seeking the advice of a family consultant or other appropriately qualified professional as to the services appropriate to the needs of the parties and the most appropriate provider of those services.
226. Subsection 13B(4) applies in circumstances where a court has adjourned the proceedings under subsection 13B(2) in order to give the parties the opportunity to consider reconciliation. This subsection provides that the court must resume the proceedings as soon as practicable if, after the adjournment, one of the parties requests this. This recognises that although, in appropriate circumstances, parties to a marriage should be given encouragement and assistance to reconcile, if either or both of those parties does not wish to pursue a reconciliation, they should be able to resume a court proceeding without undue delay.
Division 3 - Referrals to family counselling, family dispute resolution and other family services
Section 13C Court may refer parties to family counselling, family dispute resolution and other family services
227. Section 13C allows a court exercising jurisdiction in proceedings under the Act to order one or more of the parties to the proceedings to attend family counselling, family dispute resolution, or another appropriate course, program or service. The court would make such an order where it is felt that one or more of the parties would benefit from these services.
228. Currently, courts exercising jurisdiction under the Act can order people to attend, or refer them to, counselling, mediation or a post-separation parenting program under sections 16A, 16B, 19B, 19BAA, 19BA, 62F, 65F, 65LA and 70NG.
229. Section 13C consolidates and strengthens the power of the court under those sections in order to make the Act simpler to access and understand. Empowering the court to order people to attend relevant services at any time in any proceedings under the Act maximises the opportunities for people to address issues and resolve disputes outside the court. The attitudes of parties may change throughout proceedings and proposed section 13C will allow the court to direct people to appropriate services at the appropriate time.
230. To ensure that the court makes orders that are suitable to the circumstances and needs of the parties, and which take into account the family services available in different areas, the court is required to consider seeking advice from a family consultant (if it is a court that has family consultants) or an appropriately qualified professional, either within the court or outside it (such as a professional employed by a Family Relationship Centre) when making an order under this section. This recognises that judges may not be aware of all the relevant services operating in an area, or their areas of expertise, and therefore may benefit from seeking specialist advice.
231. Subsection 13C(2) allows the court to suggest a particular purpose for the attendance or participation of the party or parties. For example, a court might suggest, when ordering a party to attend a family counsellor, that the counsellor could explore ways to assist the party to cope with grief arising from separation or divorce.
232. Subsection 13C(3) provides that an order made under subsection 13C(1) may require the party or parties to encourage the participation of specified other persons who are likely to be affected by proceedings. For example, it may be appropriate to involve children, grandparents or other relatives in family counselling or family dispute resolution.
233. Subsection 13C(4) enables the court to make any other orders, additional to an order under subsection 13C(1) that it considers reasonably necessary or appropriate in relation to the order. For example, it may be appropriate to adjourn the proceedings until the party or parties has attended the service as ordered under subsection 13C(1).
234. Subsection 13C(5) provides that the court may make orders under this section on its own initiative, or when an application is made by one of the parties to the proceeding, or by a lawyer who is independently representing the interests of a child involved in the case, under section 68L. (Section 68L provides that in proceedings under the Act in which a child's best interests or welfare is the paramount, or a relevant, consideration, a court may order that the child's interests are to be independently represented by a lawyer).
Section 13D Consequences of failure to comply with order under section 13C
235. Subsection 13D(1) provides that if a court makes an order under section 13C and a party fails to comply with that order, the family counsellor, family dispute resolution practitioner or provider of the course, program or other service must report that failure to the court.
236. Subsection 13D(2) provides that when a court receives such a report it may make any further orders that it considers appropriate.
237. Subsection 13D(3) provides that the court may make an order under subsection 13D(2) on its own initiative, or when an application is made by one of the parties to the proceeding, or by a lawyer who is independently representing the interests of a child involved in the case, under section 68L. (Section 68L provides that in proceedings under the Act in which a child's best interests or welfare is the paramount, or a relevant, consideration, a court may order that the child's interests are to be independently represented by a lawyer).
238. Section 13D reproduces, in substantive terms, current subsections 62F(5) - (7) of the Act.
Part IIIB - Division 4 - Court's role in relation to arbitration of disputes
Section 13E Court may refer Part VIII proceedings to arbitration
239. Section 13E provides that a court exercising jurisdiction under Part VIII proceedings may, with the consent of all the parties to the proceedings, make an order referring the proceedings, or part of the proceedings, or any matter arising in the proceedings, to an arbitrator for arbitration. Part VIII proceedings are proceedings that relate to property, spousal maintenance or maintenance agreements. These are referred to a 'financial proceedings'.
240. Subsection 13E(2) provides that if a court makes such an order, it may, if necessary adjourn the proceedings and make any additional orders appropriate to facilitate the effective conduct of the arbitration.
241. Section 13E reproduces current section 19D of the Act. No substantive changes have been made to the arbitration provisions.
Section 13F Court may make orders to facilitate arbitration of certain disputes
242. Section 13F provides that a court having jurisdiction under the Act may, on application by a party to a relevant property or financial private arbitration, make orders appropriate to facilitate the effective conduct of the arbitration. 'Relevant property or financial arbitration' is defined at paragraph 10L(2)(b) of the Bill.
243. Section 13F reproduces existing subsection 19E(1), except to the extent that the term 'private arbitration' has been replaced by 'relevant property or financial arbitration'.
244. No substantive changes have been made to the arbitration provisions.
Section 13G Family Court and Federal Magistrates Court may determine question of law referred by arbitrator
245. Section 13G provides that an arbitrator may, at any time before making an award in the arbitration, refer a question of law arising in relation to the arbitration for determination by a judge of the Family Court or the Family Court of Western Australia, or by the Federal Magistrates Court.
246. Under subsection 13G(2), an arbitrator may make such a referral on his or her own initiative or at the request of one or more of the parties to the arbitration (if the arbitrator considers it appropriate to do so).
247. An arbitrator must not make an award in the arbitration until the question of law has been determined, or the judge or the Federal Magistrates Court has remitted the question to the arbitrator, having found that no question of law arises (subsection 13G(3)).
248. Section 13G consolidates current sections 19EA and 19EB of the Act (with relevant changes to terminology).
249. No substantive changes have been made to the arbitration provisions.
Section 13H Awards made in arbitration may be registered in court
250. Section 13H provides that a party to an award made in arbitration may register the award in either the court that ordered the arbitration under section 13E, or if the arbitration was not ordered under that section, in any court with jurisdiction under the Act.
251. An award that is registered with a court subsection 13H(1) has the same effect as a decree made by the court in which it is registered.
252. Section 13H reproduces current subsections 19D(5) and 19E(2) of the Act (with relevant changes to terminology).
253. No substantive changes have been made to the arbitration provisions.
Section 13J Family Court or Federal Magistrates Court can review registered awards
254. Section 13J provides that a party to an award that has been registered in a court under section 13H may apply for a review of the award, on questions of law, by a judge of the Family Court or the Family Court of Western Australia, or by the Federal Magistrates Court.
255. On conducting such a review, the judge or the Federal Magistrates Court may determine all questions of law arising in relation to the arbitration and make any decrees that are considered appropriate.
256. Section 13J consolidates current sections 19F and 19FA of the Act (with relevant changes to terminology).
257. No substantive changes have been made to the arbitration provisions.
Section 13K Family Court and Federal Magistrates Court may set aside registered awards
258. Section 13K provides that if an award made in arbitration, or an agreement made as a result of arbitration, is registered in the Family Court, the Family Court of Western Australia or the Federal Magistrates Court, the court in which it is registered may make a decree affirming, reversing or varying the award or agreement.
259. However, the court may only make such a decree if it is satisfied that:
260. the award or agreement was obtained by fraud (paragraph 13K(2)(a))
261. the award or agreement is void, voidable or unenforceable (paragraph 13K(2)(b))
262. it is impracticable for some of the award or agreement to be carried out (paragraph 13K(2)(c)), or
263. the arbitration was biased or there was a lack of procedural fairness in how the arbitration was conducted (paragraph 13K(2)(d)).
264. Section 13K consolidates current sections 19G and 19GA of the Act (with relevant changes to terminology).
265. No substantive changes have been made to the arbitration provisions.
Item 37: Subsection 26B(1)
266. This item amends subsection 26B(1) of the Act to replace a reference to section 19G with a reference to section 13K. This amendment is consequential to the amendments to the structure of, and the terminology employed in, the Act.
Item 38: Subsection 37(2)
267. This item amends subsection 37(2) of the Act to omit a reference to court counsellors, as a consequence of the amendments to the terminology employed in the Act.
Item 39: At the end of section 37
268. Under section 38BC, the Chief Executive Officer of the Family Court has the power to give directions that relate to the functions of family consultants in the Court, and the functions of court officers or staff members acting as family counsellors or family dispute resolution practitioners.
269. This item provides that the Principal Registrar must not give directions that relate to the functions of these people. This clarifies that the responsibility for family consultants, family counsellors and family dispute resolution practitioners in the Family Court rests with the Chief Executive Officer of that Court, rather than with its Principal Registrar.
Item 40: Paragraph 37A(1)(e)
270. This item amends paragraph 37A(1)(e) of the Act to refer to the new sections inserted by the Bill. This amendment is consequential to the amendments to the structure of the Act.
Item 41: Paragraph 37A(2)(e)
271. This item amends paragraph 37A(2)(e) of the Act to replace a reference to section 19G with a reference to section 13K. This amendment is consequential to the amendments to the structure of, and the terminology employed in, the Act.
Item 42: After Division 1 of Part IVA
Division 1A - Administration of Court's family services
272. This item inserts a new Division into the Act, to deal with administration of the Family Court's family services.
Section 38BA Chief Executive Officer has functions of family consultants
273. Section 38BA confers the functions to be performed by family consultants under section 11A on the Chief Executive Officer of the Family Court. These functions can be delegated (see section 38BB below). As the Chief Executive Officer can only delegate functions that he or she possesses the functions to be performed by family consultants under proposed section 11A must be conferred on the Chief Executive Officer.
Section 38BB Chief Executive Officer may delegate powers and functions that relate to family consultants
274. Section 38BA permits the Chief Executive Officer to delegate the functions conferred upon him or her under section 38BA. This allows the Chief Executive Officer to control the work flow to individual family consultants, to ensure that they are able to provide services to the court and people involved in proceedings in the most efficient and effective way.
275. The manner in which the Chief Executive Officer chooses to delegate such functions will be a decision for him or her. For example, the Chief Executive Officer may choose to delegate the functions of family consultants to a 'Principal family consultant'. The Bill has been designed to allow maximum flexibility for the CEO in this regard.
Section 38BC Chief Executive Officer may give directions that relate to family services functions
276. The Chief Executive Officer of the Family Court has power, under subsection 38D(1), to do all things necessary or convenient to be done for the purpose of assisting the Chief Judge to manage the administrative affairs of the Family Court. This situation will not be changed by the proposed amendments.
277. To put the matter beyond doubt, section 38BC clarifies that the Chief Executive Officer may give directions to family consultants, and court officers or staff members performing the functions of a family counsellor or family dispute resolution practitioner.
Section 38BD Chief Executive Officer may authorise officer or staff member to act as family counsellor or family dispute resolution practitioner
278. Sections 10C and 10G explain who is a 'family counsellor' or a 'family dispute resolution practitioner'. One category of family counsellor and family dispute resolution practitioner is a person who is authorised by the Chief Executive Officer of the Family Court, to act as a family counsellor under this section (as per paragraphs 10C(1)(c) and 10G(c)).
279. Subsection 38BD(3) ensures that family consultants who are authorised by the Chief Executive Officer, under this section, to provide family counselling or family dispute resolution for the Family Court do not combine the two roles, by, for example, attempting to provide services as both a family consultant and a family dispute resolution practitioner in the one case. It is imperative that the work of family consultants is kept separate from the work of family counsellors and family dispute resolution practitioners as the confidentiality and admissibility applying to the processes are completely different and it would be impossible for a practitioner to offer both types of services without compromising each one.
Item 43: Paragraphs 38N(1)(d), (da), (daa) and (db)
280. Section 38N of the Act sets out the categories of officers of the Family Court, other than the Chief Executive. This item removes the following references to positions that have been changed due to changes in terminology and adds a new reference to 'family consultants':
- •
- Paragraph 38N(1)(d) - court counsellors. This term is removed by the Bill. See item 17 of this Schedule.
- •
- Paragraph 38N(1)(da) - a Principal Mediator. The term 'mediator' is not used in the Bill. In order to give the Family Court maximum flexibility to organise its administrative arrangements (especially in view of the creation of a combined registry for the Family Court and the Federal Magistrates Court), the Bill does not refer to any hierarchy of family consultants - this will be a matter for the courts to determine.
- •
- Paragraph 38N(1)(daa) - Managers Mediation. The terms 'mediator' and 'mediation' are not used in the Bill. As above, the Bill does not impose any hierarchy on family consultants - this is a matter for the courts to determine.
- •
- Paragraph 38N(1)(db)- mediators. The term 'mediator' is not used in the Bill.
Item 44: After subsection 38R(1)
281. Section 38R of the Act allows the Chief Executive Officer of the Family Court to engage consultants. This item explicitly provides that the Chief Executive Officer may engage people to perform family counselling and family dispute resolution.
Item 45: Subsection 38R(2)
282. This amendment is consequential to Item 44.
Item 46: Paragraph 41(4)(c)
283. Section 41 of the Act sets out the requirements for the establishment of State Family Courts. This item amends paragraph 41(4)(c), to provide that the Governor-General will not proclaim a court to be a State Family Court unless, amongst other things, the Governor-General is satisfied that appropriate family counselling, family dispute resolution services and family consultants will be available to that court. Currently paragraph 41(4)(c) only refers to 'counselling facilities' being available.
Item 47: Paragraph 44(1B)(a)
284. Subsection 44(1B) provides that an application for divorce shall not be heard (without the leave of the court) unless a certificate is filed stating that the parties have considered reconciliation with the assistance of a family and child counsellor or other suitable person. This item updates the titles of the professionals from whom a certificate may be obtained in line with the changes to terminology employed in the Act.
Item 48: Subsection 55A(2)
285. This item changes the reference in subsection 55A(2) to 'a family and child counsellor or welfare officer' to 'a family consultant', in line with the amendments to the terminology employed in the Act.
Item 49: Section 60C (table item 3)
286. This amendment is consequential to the amendments to the structure of, and the terminology employed in, the Act.
Item 50: Division 3 of Part VII (heading)
287. As a result of amendments to the structure of, and the terminology employed in, the Act, Division 3 of Part VII now deals only with reports relating to children under 18. This Item amends the heading to Division 3 accordingly.
Item 51: Section 62A
288. This item repeals section 62A, which sets out what Division 3 of Part VII does, to reflect its new, more limited focus (preparation of reports for use in proceedings relating to children who are under 18), which is a result of the restructure of the Act.
Item 52: Sections 62B, 62C, 62CA, 62D, 62E and 62F
289. This item repeals current sections 62B, 62C, 62CA, 62D, 62E and 62F of the Act and inserts a new section 62B.
290. The requirements of current subsection 62B have been strengthened and incorporated into sections 12D, 12E and 12F.
291. Current sections 62C, 62CA, 62D and 62E relate to provision of family and child counselling by courts exercising jurisdiction under the Act. As the majority of family counselling and family dispute resolution will be provided through the community, rather than the court, these provisions have been removed. As set out in relation to sections 10C and 10G, the Family Court, the Family Court of Western Australia and the Federal Magistrates Court will still be able to provide these services where necessary, but it is intended that most counselling and dispute resolution services will be provided outside the court.
292. Current section 62F allows the court to direct parties to proceedings to attend a conference with a family and child counsellor or welfare officer. This has been replaced by section 13C.
293. New section 62B provides that if an order is made under Part VII (i.e. an order relating to a child), the court must inform the parties to the proceedings about the family services available to assist them to adjust to that order. As with sections 12E, 12F and 12G, new section 62B ensures that people are made aware of appropriate services at the appropriate time.
Item 53: Subsection 62G(2)
294. This item changes the reference, in subsection 62G(2), to 'a family and child counsellor or welfare officer' to 'a family consultant', in line with the amendments to the terminology employed in the Act.
Item 54: Subsections 62G(4) and (5)
295. This item changes the references in subsections 62G(4) and (5), to 'a family and child counsellor or welfare officer' to 'a family consultant', in line with the amendments to the terminology employed in the Act.
296. To ensure that the court makes orders that are suitable to the circumstances and needs of the parties, and which take into account the family services available in different areas, the court is required to consider seeking advice from a family consultant (if it is a Court that has family consultants) or an appropriately qualified professional, either within the court or outside it (such as a person employed by a Family Relationship Centre) when making an order under this section.
Item 55: Subsection 62G(6)
297. This item changes the reference, in subsection 62G(6), to 'a family and child counsellor or welfare officer' to 'a family consultant', in line with the amendments to the terminology employed in the Act.
Item 56: Section 62H
298. This item repeals section 62H which has been incorporated into new sections 12B, 12D and 12F.
Item 57: Subsection 65F(1)
299. This item repeals subsection 65F(1) which is replaced by proposed section 13C.
Item 58: Paragraph 65F(2)(a)
300. This item changes the reference, in paragraph 65F(2)(a), to 'a conference with a family and child counsellor or a welfare officer' to 'family counselling', in line with the amendments to the terminology employed in the Act.
Item 59: Paragraph 65L(1)(a)
301. This item changes the reference, in paragraph 65L(1)(a), to 'a family and child counsellor or welfare officer' to 'a family consultant', in line with the amendments to the terminology employed in the Act.
Item 60: Paragraph 65L(1)(b)
302. This item changes the reference in paragraph 65L(1)(b), to 'a family and child counsellor or welfare officer' to 'a family consultant', in line with the amendments to the terminology employed in the Act.
Item 61: Subsection 65LA(1)
303. Current subsection 65LA(1) of the Act details the procedure to be followed by the provider of a post-separation parenting program when a person is ordered by the court to attend such a program. Such levels of detail are unnecessary and are properly decisions for the providers of programs rather than the legislation. As a result, subsection 65LA(1) is amended to enable the court to order a party to attend a post-separation parenting program, without going into unnecessary detail as to the administration of that program.
Item 62: Subsection 65LA(3) (definition of post-separation parenting program or program)
304. 'Post-separation parenting program' is currently defined at subsection 65LA(3) and section 70NB of the Act. The current definition includes a reference to a list of 'post-separation parenting program providers' that is kept by the Attorney-General's Department. As this list has no relation to the quality of services provided, it has little value and is being removed from the Act by item 63.
305. As a result, the definition of 'post-separation parenting program' has been amended to remove the reference to 'a provider'. Instead the quality of services provided by post-separation parenting programs will be addressed by requiring these services to be funded by the Australian Government (whether directly or as a member of a consortium). Accountability requirements set out in the Government's funding agreements will assist in ensuring a level of quality in the services that are provided by organisations providing such post-separation parenting programs.
306. The new definition of 'post-separation parenting program' has been placed in subsection 4(1) as those accessing the legislation will often consult that general Interpretation section when seeking guidance on terms employed in the Act.
Item 63: Subsection 65LA(3)
307. This item repeals the definition of 'post-separation parenting program provider' or 'provider'. See item 62 for details.
Item 64: After section 65LA
308. Reflecting the amendment at Item 62, this item inserts section 65LB, which provides that providers of post-separation parenting programs must meet conditions. An organisation meets these conditions if:
- (a)
- the organisation is a recipient organisation (that is, the organisation is funded directly under a designated funding program or part of a program), or
- (b)
- there is a recipient organisation in relation to the organisation (that is, the organisation seeking approval is not directly funded, but is part of a legal entity, or is a member of a consortium, that receives funding under a designated program or part of a program, but that funding is provided to an organisation other than the organisation seeking approval).
The need to be able to approve organisations that are not directly funded to provide post-separation parenting programs under a designated program, but which have a relationship to an organisation that is funded in this manner stems from the fact that post-separation parenting programs may receive funding under the Australian Government's Family Relationship Services Program (FRSP). In order to receive funding under the FRSP, organisations must meet the FRSP Program Guidelines. The Guidelines require funded organisations to be incorporated. As a result, funding may be provided to individual organisations only and not to a collection of organisations such as in a consortium. Thus, if a consortium is successful in its application for funding under the FRSP, the members of the consortium would either need to form a new legal entity to receive the funding (as anticipated by paragraph 65LB(3)(a)), or could nominate a lead organisation to receive the funding, with the remaining organisations acting as subcontractors (as anticipated by paragraph 65LB(3)(b)).
2. In order to meet the conditions pursuant to paragraph 65LB(1)(a) an organisation must be a recipient organisation. Subsection 65LB(2) provides that a recipient organisation is an organisation that receives, or has been approved to receive, funding to provide services that include post-separation parenting programs, under a program or part of a program that has been designated by the Attorney-General. An organisation that individually applies for, and receives, or is approved to receive, funding under a designated program to provide services that include post-separation parenting programs, will be a recipient organisation and will therefore meet the conditions in this section.
3. In order to be able to meet the conditions pursuant to paragraph 65LB(1)(b) there must be a recipient organisation in relation to the organisation seeking approval. Subsection 65LB(3) provides that an organisation is a recipient organisation in relation to another organisation (the organisation seeking to meet the conditions in this section) in two situations.
4. The first situation, covered by paragraph 65LB(3)(a) occurs when the organisation seeking to meet the conditions is a member of an organisation that receives, or has been approved to receive, funding in order to provide services that include post-separation parenting programs. This situation may occur when a number of organisations form a new legal entity in order to receive funding under the FRSP. (As set out above, the requirement in the FRSP Guidelines that organisations must be incorporated in order to receive funding means that a consortium of organisations cannot be funded, so, in order to receive funding, members of a consortium would either need to form a new legal entity to receive the funding (as anticipated by here), or nominate a lead organisation to receive the funding, with the remaining organisations acting as subcontractors (as anticipated by paragraph 65LB(3)(a)).
5. The second situation, covered by paragraph 65LB(3)(b) occurs when an organisation receives, or has been approved to receive, funding in order to provide services that include post-separation parenting programs and that organisation acts on behalf of a group of organisations that includes the organisation seeking approval. (As set out above, the requirement in the FRSP Guidelines that organisations must be incorporated in order to receive funding means that a consortium of organisations cannot be funded, so, in order to receive funding, members of a consortium would either need to form a new legal entity to receive the funding (as anticipated by paragraph 65LB(3)(a), or nominate a lead organisation to receive the funding, with the remaining organisations acting as subcontractors (as anticipated here)).
6. Subsection 65LB(4) provides that the Attorney-General may designate, for the purposes of this section, a program or part of a program that is administered by or on behalf of the Commonwealth Government under which funding is provided to organisations for the purposes of making post-separation parenting programs available.
7. Subsection 65LB(5) provides that the Attorney-General's designation of funding programs or parts of programs under subsection 65LB(4) is not a legislative instrument. A 'legislative instrument' is defined at section 5 of the Legislative Instruments Act 2003. In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subsection 65LB(4) has been included to assist readers of the Act, so that they are aware that the requirements of imposed by the Legislative Instruments Act do not apply to instruments made under this section.
Item 65: Subsection 67ZA(1)
8. This amendment is consequential to the amendments to the terminology employed in the Act. The Note to this section explains that the heading to section 67ZA is altered in similar terms.
Item 66: Subsection 102A(5) (paragraph (b) of the definition of examined)
9. This item changes the reference, in paragraph (b) of the definition of 'examined' in subsection 102A(5), to 'a family and child counsellor or welfare officer' to 'a family consultant', in line with the amendments to the terminology employed in the Act.
Item 67: Before subsection 111CV(1)
10. This amendment is consequential to the amendments to the terminology employed in the Act. The section has also been amended to clarify the institutions and individuals it covers. No substantive changes have been made to the section.
Item 68: Subsection 111CV(1)
11. As above, the section has also been amended to clarify the institutions and individuals it covers. No substantive changes have been made to the section.
Item 69: Subsection 111CV(5)
12. Due to item 67, the information that previously appeared at this subsection now appears, in revised form in subsection 111CV(5). As a result subsection 111CV(5) is repealed by this item.
Item 70: Subsection 115(2)
13. This section has also been amended to clarify the institutions and individuals it covers. No substantive changes have been made to the section.
Item 71: Paragraph 123(1)(j)
14. This amendment is consequential to the amendments to the terminology employed in the Act.
Item 72: Paragraph 123(1)(s)
15. This amendment is consequential to the amendments to the terminology employed in the Act.
Item 73: Paragraph 123(1)(sa)
16. This amendment is consequential to the amendments to the terminology employed in the Act.
Item 74: Paragraph 123(1)(sb)
17. This amendment is consequential to the amendments to the terminology employed in the Act.
Item 75: Paragraph 123(1)(sb)
18. This amendment is consequential to the changes to the structure of the Act.
Item 76: Paragraph 123(1)(sc)
19. This amendment is consequential to the amendments to the terminology employed in the Act.
Item 77: After paragraph 123(1)(sc)
20. This amendment is consequential to the amendments to the terminology employed in the Act and the introduction of family consultants.
Item 78: Paragraph 123(1)(sd)
21. This amendment is consequential to the amendments to the terminology employed in the Act and the introduction of family consultants.
Item 79: Paragraph 123(1)(se)
22. This amendment is consequential to the amendments to the terminology employed in the Act and the introduction of family consultants.
Item 80: Subparagraph 123(1)(sf)(i)
23. This amendment is consequential to the changes to the structure of the Act.
Item 81: Subparagraph 123(1)(sf)(ii)
24. This amendment is consequential to the changes to the structure of the Act.
Item 82: Subparagraph 123(1)(sf)(ii)
25. This amendment is consequential to the changes to the structure of the Act.
Item 83: Paragraph 125(1)(ba)
26. This amendment is consequential to the amendments to the terminology employed in the Act.
Item 84: After paragraph 125(1)(bb)
27. This amendment allows regulations to be made in relation to the registration of arbitration awards, to address a current deficiency in the regulation-making power.
Item 85: Paragraph 125(1)(bc)
28. This amendment is consequential to the amendments at items 76 - 79.
Item 86: Paragraph 125(1)(ca)
29. New paragraph 125(1)(ca), inserted by this item, is consequential to the amendments to the terminology employed in the Act.
Federal Magistrates Act 1999
Item 87: Section 4
30. The Federal Magistrates Act 1999 (FMA) currently uses the term 'primary dispute resolution' to refer to the range of procedures and services for intervening in, or resolving, disputes (eg counselling (which may not aim to resolve disputes), mediation and conciliation). The use of the term 'primary dispute resolution' in the FMA stems from its use in the Family Law Act. The term is peculiar to family law and will be removed from the Act by the Bill.
31. In addition, Item 93 of this Schedule amends the FMA to provide that Part 4 of the FMA does not apply to proceedings under the Family Law Act in the Federal Magistrates Court. The result of this amendment is that the provisions in the FMA relating to dispute resolution will no longer apply to family law proceedings.
32. As a result of these two factors it would be inappropriate to retain the term 'primary dispute resolution' in the FMA. As a result, this item replaces the phrase 'promote the use of primary dispute resolution' in section 4 of the FMA with 'promote the use of dispute resolution'.
Item 88: Section 5
33. Section 10A of the Act, at Item 36 of this Schedule, provides that the Regulations may prescribe 'Accreditation Rules', which are rules relating to the accreditation of family counsellors, family dispute resolution practitioners and 'persons to perform other roles prescribed by regulations' (paragraph 10A(1)(c) - this third category will cover workers in services that are funded by the Australian Government).
34. As the Accreditation Rules will also be relevant to the Federal Magistrates Court, this item inserts a definition of 'Accreditation Rules' into section 5 of the FMA.
Item 89: Section 5 (definition of Family and child counsellor)
35. Item 20 of this Schedule repeals the definition of 'family and child counsellor' in the Act. This item correspondingly removes the term from the FMA.
Item 90: Section 5
36. Section 11B of the Act, inserted by item 36 of this Schedule, contains a definition of 'family consultant'. This item correspondingly inserts the term in the FMA.
Item 91: Section 5 (definition of Welfare officer )
37. Item 34 of this Schedule repeals the definition of 'welfare officer' in the Act. This item correspondingly removes the term from the FMA.
Item 92: Part 4 (heading)
38. Item 93 inserts section 20A into the FMA. That section provides that family law proceedings in the Federal Magistrates Court will be covered by the Act, rather than by provisions in the FMA. This item amends the heading to Part 4 of the FMA to reflect this change.
Item 93: Before section 21
39. Item 93 inserts section 20A into the FMA. Section 20A provides that family law proceedings in the Federal Magistrates Court will be covered by the Act, rather than by provisions in the FMA.
Item 94: Section 21 (definition of primary dispute resolution processes)
40. The term 'primary dispute resolution' is removed from both the Act and the FMA by the Bill. See item 87 for details.
Item 95: Section 21
41. As set out at item 87, the Bill removes the term 'primary dispute resolution' from the FMA and replaces it with the term 'dispute resolution'. Accordingly this item replaces the definition of 'primary dispute resolution' in section 21, which is repealed by item 94, with a definition of 'dispute resolution'.
Item 96: Section 22
42. This item is consequential to the replacement of the term 'primary dispute resolution' with 'dispute resolution' in the FMA.
Item 97: Section 23 (including the note)
43. This item is consequential to the replacement of the term 'primary dispute resolution' with 'dispute resolution' in the FMA.
Item 98: Section 24
44. This item is consequential to the replacement of the term 'primary dispute resolution' with 'dispute resolution' in the FMA.
Item 99: Subsection 25(1)
45. This item is consequential to the replacement of the term 'primary dispute resolution' with 'dispute resolution' in the FMA.
Item 100: Subsection 27(1)
46. This item is consequential to the replacement of the term 'primary dispute resolution' with 'dispute resolution' in the FMA.
Item 101: Subsections 27(2), 28(1) and (2), and 29(1)
47. This item is consequential to the replacement of the term 'primary dispute resolution' with 'dispute resolution' in the FMA.
Item 102: Paragraph 29(2)(a)
48. This item is consequential to the replacement of the term 'primary dispute resolution' with 'dispute resolution' in the FMA.
Item 103: Subparagraphs 29(2)(b)(i) and (ii)
49. This item is consequential to the replacement of the term 'primary dispute resolution' with 'dispute resolution' in the FMA.
Item 104: Paragraph 29(2)(c)
50. This item is consequential to the replacement of the term 'primary dispute resolution' with 'dispute resolution' in the FMA.
Item 105: Section 30
51. This item is consequential to the replacement of the term 'primary dispute resolution' with 'dispute resolution' in the FMA.
Item 106: After Division 1 of Part 7
Division 1A - Administration of Federal Magistrates Court's family services
52. This item inserts a new Division 1A into Part 7 of the FMA, to deal with the administration of the Federal Magistrates Court's family services. This Division mirrors new Division 1A of Part IVA of the Act, inserted by item 42 of this Schedule.
Section 93A Chief Executive Officer has functions of family consultants
53. This section mirrors new section 38BA of the Act.
54. Section 93A confers the functions to be performed by family consultants under section 11A of the Act on the Chief Executive Officer of the Federal Magistrates Court.
55. This conferral is required as section 93B allows the Chief Executive Officer of the FMA to delegate powers, functions and duties in relation to the functions of family consultants mentioned in section 11A of the Act. The Chief Executive Officer cannot delegate functions that he or she does not have, so, in order for section 93B to work as intended, functions to be performed by family consultants under proposed section 11A must be conferred on the Chief Executive Officer.
Section 93B Chief Executive Officer may delegate powers and functions that relate to family consultants
56. This section permits the Chief Executive Officer to delegate those functions conferred under section 93A, to allow the Chief Executive Officer to control the work flow to individual family consultants, to ensure that they are able to provide services to the court and people involved in proceedings in the most efficient and effective way.
57. The manner in which the Chief Executive Officer chooses to delegate such functions will be a decision for him or her. For example, the Chief Executive Officer may choose to delegate the functions of family consultants to a 'Principal family consultant'. The Bill has been designed to allow maximum flexibility for the CEO in this regard.
Section 93C Chief Executive Officer may give directions that relate to family services functions
58. The Chief Executive Officer of the Federal Magistrates Court has power, under subsection 96(2) of the FMA, to do all things necessary or convenient to be done for the purpose of assisting the Chief Federal Magistrate to manage the administrative affairs of the Federal Magistrates Court. This situation will not be changed by the proposed amendments.
59. To put the matter beyond doubt, section 93C clarifies that the Chief Executive Officer may give directions to family consultants, and court officers or staff members performing the functions of a family counsellor or family dispute resolution practitioner.
Section 93D Chief Executive Officer may authorise officer or staff member to act as family counsellor or family dispute resolution practitioner
60. Sections 10C and 10G of the Act explain who is a 'family counsellor' or a 'family dispute resolution practitioner'. One category of family counsellor and family dispute resolution practitioner is a person who is authorised by the Chief Executive Officer of the Federal Magistrates Court, to act as a family counsellor under this section (as per paragraphs 10C(1)(d) and 10G(1)(d)).
61. Subsection 93D(3) ensures that family consultants who are authorised by the Chief Executive Officer, under this section, to provide family counselling or family dispute resolution for the Federal Magistrates Court do not combine the two roles, by, for example, attempting to provide services as both a family consultant and a family dispute resolution practitioner in the one case. It is imperative that the work of family consultants is kept separate from the work of family counsellors and family dispute resolution practitioners as the confidentiality and admissibility applying to the processes are completely different and it would be impossible for a practitioner to offer both types of services without compromising each one.
Item 107: Paragraph 87(1)(f)
62. This amendment is consequential to the amendments to the terminology employed in the Act and the FMA.
Item 108: Subsection 87(2)
63. This amendment is consequential to the amendments to the terminology employed in the Act and the FMA.
Item 109: At the end of subsection 99(1)
64. Section 99 of the FMA lists the officers of the Federal Magistrates Court. This item adds 'family consultants' to that list.
Item 110: Paragraph 102(2)(k)
65. This amendment is consequential to the amendments to the terminology employed in the Act and the FMA.
Item 111: After section 111
Section 111A: Family consultants
66. Family consultants may be officers of the Federal Magistrates Court (as per Item 109). Section 111A provides that if a family consultant is an officer of the Federal Magistrates Court, he or she is to be engaged under the Public Service Act 1999. This is the position in relation to staff of the Federal Magistrates Court, under subsection 112(2) of the FMA.
67. The Note to this section clarifies that family consultants who are not officers of the Federal Magistrates Court may be appointed under regulations made under the Act.
Item 112: After subsection 115(1)
68. This item mirrors item 44 of this Schedule, which relates to section 38R of the Act. Section 115 of the FMA allows the Chief Executive Officer of the Federal Magistrates Court to engage consultants. Item 112 explicitly provides that the Chief Executive Officer may engage people to perform family counselling and family dispute resolution.
Item 113: Subsection 115(2)
69. This amendment is consequential to the amendment at item 112.
Marriage Ac
Item 114: Section 9D
70. Section 9D of the Marriage Act 1961 refers to organisations that are approved as counselling organisations under the Act. The section is repealed as a consequence of the removal of the concept of approved organisations from the Act.
Item 115: Paragraphs 16(2A)(a)
71. This amendment is consequential to the amendments to the terminology employed in the Act.
Item 116: Paragraph 16(2A)(b)
72. This amendment is consequential to the amendments to the terminology employed in the Act.
Item 117: Subsection 16(7)
73. This amendment is consequential to the amendments to the terminology employed in the Act.
Part 4 - Transitional matters relating to family counselling and family dispute resolution
74. Part 4 sets out transitional arrangements. These include the second stage of amendments to the approval process for organisations to reflect the new terminology to be introduced into the Act on commencement (which is expected to be 1 July 2006). At this time these amendments will remove the terms 'family and child counselling', 'family and child counsellor', 'family and child mediation' and 'family and child mediator' from the Act. Relatedly, the terms 'approved counselling organisation' and 'approved mediation organisation' will be removed from the Act and replaced with the new terms 'approved family counselling organisation' and 'approved family dispute resolution organisation'.
75. Existing services will not be affected by the changes to the approval process. Item 120 of the Bill provides that if, immediately before Part 3 of Schedule 4 commences, an organisation is approved as a counselling organisation it is, during the transition period, taken to be approved as a family counselling organisation under item10E of Schedule 4. Similarly, Item 121 provides that if, immediately before Schedule 4 commences, an organisation is approved as a mediation organisation it is, during the transition period, taken to be approved as a family dispute resolution organisation under item 10N of Schedule 4.
Item 118: Definitions
76. Subsection 118(1) provides that terms used in this Part that are defined in the Act have the same meaning as they have in that Act. This definition is needed as the provisions in this Part will not be inserted in the Act, but rather will appear in the Act created when this Bill is passed by Parliament, that is, the Family Law Amendment (Shared Parental Responsibility) Act 2005 (the Shared Parental Responsibility Act).
77. Subsection 118(2) sets out the definition of terms used in this Part. The defined terms are:
- •
- 'approved family counselling organisation', which is:
- -
- an organisation in respect of which an approval is in force under item 120. (Item 120 allows the Attorney-General to approve family counselling organisations during the transition period), or
- -
- an organisation that is taken to be an approved family counselling organisation because of item 123. (Item 123 provides that organisations that, immediately before the commencement of Part 3 of this Schedule, are approved counselling organisations under section 13A of the Act are taken to be approved as family counselling organisations under item 123).
- •
- 'approved family dispute resolution organisation', which is:
- -
- an organisation in respect of which an approval is in force under item 125. (Item 125 allows the Attorney-General to approve family dispute resolution organisations during the transition period), or
- -
- an organisation that is taken to be an approved family counselling organisation because of item 128. (Item 128 provides that organisations that, immediately before the commencement of Part 3 of this Schedule, are approved mediation organisations under section 13B of the Act are taken to be approved as family dispute resolution organisations under item 128).
- •
- 'commencement', which is the time at which Part 3 of this Schedule commences, which is a date to be fixed by Proclamation (and is expected to be 1 July 2006).
- •
- 'transition period', which is the period that begins at the time Part 3 of this Schedule commences (as above this is a date to be fixed by Proclamation, and which is expected to be 1 July 2006) and ends on the day prescribed by regulations made for the purpose of this definition. Such regulations will appear in the Family Law Amendment (Shared Parental Responsibility) Regulations 2006 (the Shared Parental Responsibility Regulations), which will be created after this Bill is passed. It is anticipated that the transition period will be at least three years in duration.
Item 119: Persons who are taken to be family counsellors during the transition period
78. During the 'transition period' approved organisations (provided that their approval status is not terminated or revoked) will be able to continue to authorise family counsellors and family dispute resolution practitioners as set out in section 10C of the Act. Professionals so authorised will be taken to be accredited during the transition period.
79. This will ensure that professionals who are currently providing these services, and people who begin providing family counselling services will continue to offer these services during the transition period.
Item 120 Approval of family counselling organisations
80. To ensure that professionals who are currently delivering family and child counselling and family and child mediation are able to continue to offer these services (which are termed 'family counselling' an 'family dispute resolution' under the Bill) without interruption on the introduction of the accreditation regime a transition period is provided.
81. As a result, the Attorney-General needs to be able to continue to approve organisations as family counselling organisations during the transition period. This item allows such approvals to occur. Family counselling organisations approved by the Attorney-General under this item will also be able to authorise people to provide family counselling on their behalf in the transition period, provided that their approval status is not terminated or revoked. The people thus authorised are taken to be 'family counsellors' under section 10C of the Act, and do not, during the transition period, need to independently meet the Accreditation Rules.
82. The Attorney-General may approve an organisation as a family counselling organisation under this item only if he or she is satisfied that:
- •
- the organisation is a recipient organisation (that is, the organisation is funded directly under a designated funding program or part of a program), or
- •
- there is a recipient organisation in relation to the organisation (that is, the organisation seeking approval is not directly funded, but is part of a legal entity, or is a member of a consortium, that receives funding under a designated program or part of a program, but that funding is provided to an organisation other than the organisation seeking approval).
83. The need to be able to approve organisations that are not directly funded to provide family counselling under a designated program, but which have a relationship to an organisation that is funded in this manner stems from the fact that approved family counselling organisations will receive funding under the Australian Government's Family Relationship Services Program (FRSP). In order to receive funding under the FRSP, organisations must meet the FRSP Program Guidelines. The Guidelines require funded organisations to be incorporated. As a result, funding may be provided to individual organisations only and not to a collection of organisations such as in a consortium. Thus, if a consortium is successful in its application for funding under the FRSP, the members of the consortium would either need to form a new legal entity to receive the funding (as anticipated by paragraph 120(3)(a)), or could nominate a lead organisation to receive the funding, with the remaining organisations acting as subcontractors (as anticipated by paragraph 120(3)(a)).
84. The requirement that organisations must be funded (whether directly or indirectly) in order to be approved, reflects current practice, as all approved organisations are currently funded under the FRSP. Accountability requirements under the FRSP assist in ensuring a level of quality in the services that are provided by approved organisations.
85. In order to be approved pursuant to paragraph 120(1)(a) an organisation must be a recipient organisation. Subitem 120(2) provides that a recipient organisation is an organisation that receives, or has been approved to receive, funding to provide services that include family counselling, under a program or part of a program that has been designated by the Attorney-General. An organisation that individually applies for, and receives, or is approved to receive, funding under a designated program to provide services that include family counselling, will be a recipient organisation and will therefore be eligible for approval as a family counselling organisation.
86. In order to be approved pursuant to paragraph 120(1)(b) there must be a recipient organisation in relation to the organisation seeking approval. Subitem 120(3) provides that an organisation is a recipient organisation in relation to another organisation (the organisation seeking approval) in two situations.
87. The first situation, covered by paragraph 120(3)(a) occurs when the organisation seeking approval is a member of an organisation that receives, or has been approved to receive, funding in order to provide services that include family counselling. This situation may occur when a number of organisations form a new legal entity in order to receive funding under the FRSP. (The requirement in the FRSP Guidelines that organisations must be incorporated in order to receive funding means that a consortium of organisations cannot be funded, so, in order to receive funding, members of a consortium would either need to form a new legal entity to receive the funding (as anticipated by here), or nominate a lead organisation to receive the funding, with the remaining organisations acting as subcontractors (as anticipated by paragraph 120(3)(a)).
88. The second situation, covered by paragraph 120(3)(b) occurs when an organisation receives, or has been approved to receive, funding in order to provide services that include family counselling and that organisation acts on behalf of a group of organisations that includes the organisation seeking approval. (As set out above, the requirement in the FRSP Guidelines that organisations must be incorporated in order to receive funding means that a consortium of organisations cannot be funded, so, in order to receive funding, members of a consortium would either need to form a new legal entity to receive the funding (as anticipated by paragraph 120(3)(a), or nominate a lead organisation to receive the funding, with the remaining organisations acting as subcontractors (as anticipated here).
89. Subitem 120(4) provides that the Attorney-General may designate, for the purposes of subitem 120(1), a program or part of a program that is administered by or on behalf of the Commonwealth Government under which funding is provided to organisations for the purposes of making family counselling services available.
90. Subitem 120(4) provides that the Attorney-General's designation of funding programs or parts of programs under subitem 120(4) is not a legislative instrument. A 'legislative instrument' is defined at section 5 of the Legislative Instruments Act 2003. In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subitem 120(4) has been included to assist readers of the Act, so that they are aware that the requirements of imposed by the Legislative Instruments Act do not apply to instruments made under this section.
91. The capacity to approve organisations subject to conditions (as per current section 13C of the Act) has been removed. It is intended that quality issues should be addressed through the FRSP funding contracts, as this provides a stringent and enforceable means of ensuring and addressing service standards.
92. As is currently the case under section 13 of the Act, an organisation may be approved as both a family counselling and a family dispute resolution organisation.
Item 121 Termination of and revocation of approvals
93. Item 121 provides that organisations must be funded (whether directly or indirectly) in order to be approved by the Attorney-General as a family counselling organisation. These organisations will receive funding under the FRSP. Accountability requirements under the FRSP assist in ensuring a level of quality in the services that are provided by approved organisations.
94. As approval of, and the capacity to monitor the quality of services delivered by, organisations is tied to funding, this item provides that an organisation ceases to be approved as a family counselling organisation under item 120 if the organisation ceases to receive, or be approved to receive, funding (either directly, if the organisation is a recipient organisation as set out at subitem 120(2), or indirectly, if there is a recipient organisation in relation to the organisation, as per subitem 120(3)) under a program or part of a program designated by the Attorney-General under subitem 120(4).
95. Subitem 121(2) provides that if an organisation that is approved under item 120 requests that its approval is revoked, the Attorney-General must revoke that approval.
96. Subitem 121(3) provides that if the Attorney-General revokes a family counselling organisation's approval under this item, he or she must do so by notice in writing to the organisation concerned.
Item 122 Minister to publish lists of approved family counselling organisations
97. Item 122 requires the Attorney-General to publish, at least annually, a list of all approved family counselling organisations. This provision ensures that the public is able to easily access this information, in the interests of transparency. It reproduces, in substantive terms, current section 13E of the Act.
Item 123: Approved counselling organisations become approved family counselling organisations
98. In order to ensure that organisations that have been approved as counselling organisations by the Attorney-General under section 13A of the Act are able to continue offering services without interruption throughout the transition period, this item provides that if, immediately before Part 3 of Schedule 4 commences, an organisation is approved as a counselling organisation it is, during the transition period, taken to be approved as a family counselling organisation under item 120.
Item 124: Persons who are taken to be family dispute resolution practitioners during the transition period
99. To ensure that professionals who are currently delivering family and child counselling and family and child mediation are able to continue to offer these services (which are termed 'family counselling' an 'family dispute resolution' under the Bill) without interruption on the introduction of the accreditation regime a transition period is provided.
100. During the 'transition period' approved organisations will be able to continue to authorise family dispute resolution practitioners. Professionals so authorised will be taken to be accredited during the transition period.
101. The Bill preserves the ability of organisations that are currently approved as mediation organisations to authorise people to provide family dispute resolution on their behalf in the transition period, provided that the organisations approval status is not terminated or revoked during the transition period. The people thus authorised are taken to be 'family dispute resolution practitioners' under section 10G of the Act, introduced by this Schedule, and do not, during the transition period, need to independently meet the Accreditation Rules.
102. The Attorney-General will also be able to continue to approve organisations as family dispute resolution organisations during the transition period, under item 125. Family dispute resolution organisations approved by the Attorney-General under that item will also be able to authorise people to provide family counselling on their behalf in the transition period, provided that their approval status is not terminated or revoked. The people thus authorised are taken to be 'family counsellors' under section 10Ce of the Act, introduced by this Schedule, and do not, during the transition period, need to independently meet the Accreditation Rules.
103. In addition to being authorised by an approved mediation organisation, the current definition of 'family and child mediator" includes people who meet the requirements set out in Part 5 of the Regulations (paragraph (c) of the definition of family and child mediator in subsection 4(1) of the Act). In order to ensure that these people can continue to provide services, a person who is a family and child mediator under paragraph (c) of the definition of family and child mediator (that is, because they meet the requirements set out in the Regulations, or who meet those requirements in the first twelve months of the transition period, will also be taken to be family dispute resolution practitioners under section 10J of the Act.
Item 125 Approval of family dispute resolution organisations
104. To ensure that professionals who are currently delivering family and child counselling and family and child mediation are able to continue to offer these services (which are termed 'family counselling' an 'family dispute resolution' under the Bill) without interruption on the introduction of the accreditation regime a transition period is provided.
105. As a result, the Attorney-General needs to be able to continue to approve organisations as family dispute resolution organisations during the transition period. This item allows such approvals to occur. Family dispute resolution organisations approved by the Attorney-General under this item will be able to authorise people to provide family dispute resolution on their behalf in the transition period, provided that their approval status is not terminated or revoked. The people thus authorised are taken to be 'family dispute resolution practitioners' under section 10J of the Act, introduced by this Schedule, and do not, during the transition period, need to independently meet the Accreditation Rules.
106. The Attorney-General may approve an organisation as a family dispute resolution organisation under this item only if he or she is satisfied that:
- (a)
- the organisation is a recipient organisation (that is, the organisation is funded directly under a designated funding program or part of a program), or
- (b)
- there is a recipient organisation in relation to the organisation (that is, the organisation seeking approval is not directly funded, but is part of a legal entity, , or is a member of a consortium, that receives funding under a designated program or part of a program, but that funding is provided to an organisation other than the organisation seeking approval).
The need to be able to approve organisations that are not directly funded to provide family dispute resolution under a designated program, but which have a relationship to an organisation that is funded in this manner stems from the fact that approved family dispute resolution organisations will receive funding under the Australian Government's Family Relationship Services Program (FRSP). In order to receive funding under the FRSP, organisations must meet the FRSP Program Guidelines. The Guidelines require funded organisations to be incorporated. As a result, funding may be provided to individual organisations only and not to a collection of organisations such as in a consortium. Thus, if a consortium is successful in its application for funding under the FRSP, the members of the consortium would either need to form a new legal entity to receive the funding (as anticipated by paragraph 125(3)(a)), or could nominate a lead organisation to receive the funding, with the remaining organisations acting as subcontractors (as anticipated by paragraph 125(3)(a)).
2. The requirement that organisations must be funded (whether directly or indirectly) in order to be approved, reflects current practice, as all approved organisations are currently funded under the FRSP. Accountability requirements under the FRSP assist in ensuring a level of quality in the services that are provided by approved organisations.
3. In order to be approved pursuant to paragraph 125(1)(a) an organisation must be a recipient organisation. Subitem 125(2) provides that a recipient organisation is an organisation that receives, or has been approved to receive, funding to provide services that include family dispute resolution, under a program or part of a program that has been designated by the Attorney-General. An organisation that individually applies for, and receives, or is approved to receive, funding under a designated program to provide services that include family dispute resolution , will be a recipient organisation and will therefore be eligible for approval as a family dispute resolution organisation.
4. In order to be approved pursuant to paragraph 125(1)(b) there must be a recipient organisation in relation to the organisation seeking approval. Subitem 125(3) provides that an organisation is a recipient organisation in relation to another organisation (the organisation seeking approval) in two situations.
5. The first situation, covered by paragraph 125(3)(a) occurs when the organisation seeking approval is a member of an organisation that receives, or has been approved to receive, funding in order to provide services that include family dispute resolution. This situation may occur when a number of organisations form a new legal entity in order to receive funding under the FRSP. (As set out above, the requirement in the FRSP Guidelines that organisations must be incorporated in order to receive funding means that a consortium of organisations cannot be funded, so, in order to receive funding, members of a consortium would either need to form a new legal entity to receive the funding (as anticipated by here), or nominate a lead organisation to receive the funding, with the remaining organisations acting as subcontractors (as anticipated by paragraph 125(3)(b)).
6. The second situation, covered by paragraph 125(3)(b) occurs when an organisation receives, or has been approved to receive, funding in order to provide services that include family dispute resolution and that organisation acts on behalf of a group of organisations that includes the organisation seeking approval. (As set out above, the requirement in the FRSP Guidelines that organisations must be incorporated in order to receive funding means that a consortium of organisations cannot be funded, so, in order to receive funding, members of a consortium would either need to form a new legal entity to receive the funding (as anticipated by paragraph 125(3)(a), or nominate a lead organisation to receive the funding, with the remaining organisations acting as subcontractors (as anticipated here).
7. Subitem 125(4) provides that the Attorney-General may designate, for the purposes of subitem 125(1), a program or part of a program that is administered by or on behalf of the Commonwealth Government under which funding is provided to organisations for the purposes of making family dispute resolution services available.
8. Subitem 125(4) provides that the Attorney-General's designation of funding programs or parts of programs under subitem 125(4) is not a legislative instrument. A 'legislative instrument' is defined at section 5 of the Legislative Instruments Act 2003. In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subitem 125(4) has been included to assist readers of the Act, so that they are aware that the requirements of imposed by the Legislative Instruments Act do not apply to instruments made under this section.
9. The capacity to approve organisations subject to conditions (as per current section 13C of the Act) has been removed. It is intended that quality issues should be addressed through the FRSP funding contracts, as this provides a stringent and enforceable means of ensuring and addressing service standards.
10. As is currently the case under section 13 of the Act, an organisation may be approved as both a family counselling and a family dispute resolution organisation.
Item 126 Termination of and revocation of approvals
11. Item 125 provides that organisations must be funded (whether directly or indirectly) in order to be approved by the Attorney-General as a family dispute resolution organisation. These organisations will receive funding under the FRSP. Accountability requirements under the FRSP assist in ensuring a level of quality in the services that are provided by approved organisations.
12. As approval of, and the capacity to monitor the quality of services delivered by, organisations is tied to funding, this item provides that an organisation ceases to be approved as a family dispute resolution organisation under item 125 if the organisation ceases to receive, or be approved to receive, funding (either directly, if the organisation is a recipient organisation as set out at subitem 125(2), or indirectly, if there is a recipient organisation in relation to the organisation, as per subitem 125(3)) under a program or part of a program designated by the Attorney-General under subitem 125(4).
13. Subitem 126(2) provides that if an organisation that is approved under item 10N requests that its approval is revoked, the Attorney-General must revoke that approval.
14. Subitem 126(3) provides that if the Attorney-General revokes a family dispute resolution organisation's approval under this item, he or she must do so by notice in writing to the organisation concerned.
Item 127 Minister to publish lists of approved family dispute resolution organisations
15. Item 127 requires the Attorney-General to publish, at least annually, a list of all approved family dispute resolution organisations. This provision ensures that the public is able to easily access this information, in the interests of transparency. It reproduces, in substantive terms, current section 13E of the Act.
Item 128: Approved mediation organisations become approved family dispute resolution organisations
16. In order to ensure that organisations that have been approved as mediation organisations by the Attorney-General under section 13B of the Act are able to continue offering services without interruption throughout the transition period, this item provides that if, immediately before Part 3 of Schedule 4 commences, an organisation is approved as a mediation organisation it is, during the transition period, taken to be approved as a family dispute resolution organisation under item 125.
Part 5 - Application and transitional provisions relating to other changes to dispute resolution
Item 129: Definition of commencement
17. This item defines that in this Part of Schedule 4 'commencement' is the time at which Part 3 of this Schedule commences, which is a date to be fixed by Proclamation, and which is expected to be 1 July 2006.
Item 130: Notices filed under section 15
18. Currently section 15 of the Act allows a party to a marriage to file a notice in the Family Court or the Family Court of Western Australia, stating that the party wishes to be assisted by the counselling facilities of that court. If such a notice is filed, arrangements must be made for the parties to the marriage to attend an interview with a family and child counsellor to assist with a possible reconciliation, or to improve their relationship with each other or with any of their children.
19. This item provides that if at commencement (see item 129) a notice under current section 15 of the Act has been filed, but has not yet been acted on, an appropriate officer of the court in which the notice was filed must arrange for the parties to the marriage to see a family counsellor.
Item 131: Arbitration awards registered under section 19D are taken to be registered under section 13H
20. Current subsection 19D(5) of the Act provides that a party to an award made in arbitration may register the award in the court that ordered the arbitration under that section.
21. Current subsection 19E(2) provides that a party to an award made in private arbitration may register the award in any court with jurisdiction under the Act.
22. An award that is registered with a court under subsections 19D(5) or 19E(5) has the same effect as a decree made by the court in which it is registered.
23. This item provides that an arbitration award that had been registered under sections 19D or 19E of the Act at any time before commencement (see item 129) and is still registered immediately before commencement, continues to have effect as if it had been registered under new section 13H of the Act. Section 13H reproduces current subsections 19D(5) and 19E(2) of the Act (with relevant changes to terminology).
Item 132: Powers under Division 4 of Part IIIB of the Family Law Act 1975 may be exercised in relation to section 19D arbitration and private arbitration
24. Currently the Act refers to two types of arbitration - 'section 19D arbitration' and 'private arbitration'. These terms are replaced in the Bill by 'section 13E arbitration' and 'relevant property or financial arbitration' (see subsection 10L(2), inserted by item 36 of this Schedule).
25. This item provides that for the purposes of the sections 13G, 13H, 13J and 13K, a reference to section 13E arbitration includes a reference to section 19D arbitration; and a reference to relevant property or financial arbitration includes a reference to private arbitration. Subsection 19E(2) provides that a party to an award made in private arbitration may register the award in any court with jurisdiction under the Act.
Item 133: Subsection 44(1B) certificates
26. Current subsection 44(1B) of the Act provides that an application for divorce shall not be heard (without the leave of the court) unless a certificate is filed stating that the parties have considered reconciliation with the assistance of a family and child counsellor or another suitable person or organisation.
27. Item 47 of this Schedule updates the titles of the professionals from whom a certificate may be obtained in line with the changes to terminology employed in the Act.
28. This item provides that a certificate provided by a family and child counsellor, or other appropriate person, in line with the requirements imposed under subsection 44(1B) before commencement may be filed in relation to an application for divorce to satisfy the requirement under section 44(1B) as amended by this Schedule.
Item 134: Request for counselling under section 62C or 62CA
29. Current sections 62C and 62CA of the Act allow parties to proceedings, and other specified people, to file in the Family Court or the Family Court of Western Australia (under section 62C), or the Federal Magistrates Court (under section 62CA) a notice requesting the assistance of the counselling facilities of that court. If such a notice is filed, specified court staff must arrange for the parties to be interviewed by a family and child counsellor or a welfare officer.
30. This item provides that if a notice has been filed under section 62C or 62CA of the Act, but has, at commencement, not been acted upon, an appropriate officer of the court in which the notice was filed must arrange for the parties to be interviewed by a family counsellor.
Item 135: Order under subsection 62F(2)
31. Subsection 62F(2) of the Act allows the court to make an order directing the parties to proceedings where the care, welfare and development of a child is relevant, to attend a conference with a family and child counsellor or a welfare officer.
32. This item provides that if, at commencement, an order under subsection 62F(2) of the Act has not yet been complied with, the parties may attend a conference with a family counsellor, and such attendance will be regarded as complying with the order.
Item 136: Reports under section 62G
33. In proceedings where the care, welfare and development of a child is relevant, subsection 62G(2) of the Act allows the court to direct a family and child counsellor or welfare officer to give the court a report on relevant matters. Items 53 to 55 of this Schedule replace the references to 'family and child counsellor or welfare officer' in section 62G with 'family consultant'.
34. This item provides that if a family and child counsellor or welfare officer has been directed, under subsection 62G(2), to give the court a report and, at commencement, has not yet done so, he or she must still provide the report and references in the amended section 62G to a 'family consultant' are taken to be references to the person who supplies the report.
Item 137: Pre-parenting order counselling for the purposes of section 65F
35. Current section 65F provides that the court must not make a parenting order (subject to some exceptions) unless the parties to proceedings have attended a conference with a family and child counsellor or welfare officer to discuss the matter to which the proceedings relate. Items 57 and 58 of this Schedule replace the references to 'family and child counsellor or welfare officer' in section 65G with 'family consultant'.
36. This item provides that if, before commencement, parties to proceedings have attended a conference with a family and child counsellor or welfare officer to discuss the matters to which the proceedings relate, the attendance at that conference is taken to satisfy the requirement in section 65F(2) as amended by this Bill to attend a conference with a family consultant.
Item 138: Supervision etc. of parenting orders
37. Current section 65L provides that if a court makes a parenting order it may also make an order requiring a family and child counsellor or welfare officer to supervise compliance with that order or give assistance to a party to comply with that order.
38. This item provides that if such an order is made before commencement, the court may make another order substituting a family consultant for the family and child counsellor or welfare officer specified in the original order.
Item 1
39: Regulations may prescribe transitional matters 39. This item provides that regulations may be made that prescribe matters:
- •
- of a transitional nature relating to the amendments or repeals in this Schedule
- •
- required or permitted by this Schedule to be prescribed, or
- •
- necessary or convenient to be prescribed for carrying out or giving effect to this Schedule.
SCHEDULE 5 - REPRESENTATION OF CHILD'S INTERESTS BY INDEPENDENT CHILDREN'S LAWYER
40. Schedule 5 implements a number of the recommendations made by the Family Law Council (the Council) in its report, Pathways for Children: A review of children's representation in family law (the Report).
41. The former Attorney-General, the Hon Daryl Williams AM QC MP, requested that the Council prepare the Report as a response to recommendation 21 of the Family Pathways Advisory Group's 2001 report, Out of the Maze: Pathways to the Future for Families Experiencing Separation. In doing so, the Council was requested to review the role and the basis of appointment of child representatives, particularly in light of the Council's 1996 report, Involving and Representing Children in Family Law.
42. The amendments aim to strengthen the role of the child representative by providing further guidance to lawyers acting in the role. Along with the Guidelines for child representatives: Practice directions and guidelines (the Guidelines), released by the Family Court of Australia, the amendments also aim to provide clarity and understanding to those parties participating in proceedings where a child representative is involved.
Part 1 - Amendments
Family Law Act 1975
Item 1 - Subsection 4(1) (definition of child representative)
43. Item 1 repeals the definition of 'child representative'. The role of the 'child representative' will now be referred to as 'independent children's lawyer' to help children and parents understand the neutrality and independence of the role. The Council considered that the term 'child representative' creates confusion, particularly for children who may expect that the child's representative will act on the child's instructions.
44. In the Report, the Council recommended that the term 'independent lawyer' be used. However, the Government considers that the term 'independent children's lawyer' is more descriptive and will be of use in identifying that the independent children's lawyer is associated with the child and not the other parties involved in the proceedings.
Item 2 - Subsection 4(1)
45. Item 2 inserts a definition of 'independent children's lawyer' into the consolidated dictionary at section 4 of the Act. Section 4 sets out the definitions for Part VII of the Act. 'Independent children's lawyer' will mean a lawyer that represents the child's interests in proceedings, where that lawyer has been appointed under a court order made under subsection 68L(2) of the Act.
46. Subsection 68L(2) explains that a court may order that a child's interests be independently represented by a lawyer if it appears that such representation is necessary in the proceedings. The court may also make any other such orders as it considers necessary to secure that representation.
Item 3 - Subsection 4(1)
47. Item 3 inserts a definition of 'lawyer' into the consolidated dictionary at section 4 of the Act. Subsection 4 sets out the definitions for Part VII of the Act. A 'lawyer' means a person enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory.
48. In its Report, the Council concluded that the role of a child representative should be carried out by an appropriately trained lawyer, rather than a child and family counsellor. The Council noted that many elements of the child representative's role presume prior legal training and experience in applying law and legal principle to a range of scenarios.
Item 4 - Section 60C (table item 10)
49. Item 4 repeals item 10 of the table at section 60C that provides an outline of the provisions in Part VII of the Act. Part VII is the part of the Act that deals with children. This item replaces item 10 of the table so that it only refers to the representation of the child's interests in proceedings by an independent children's lawyer. This item also removes the references to the determination of what is in a child's best interests, as these provisions have now been relocated to Division 1 of the Act (Schedule 1, item 9) to give greater emphasis and visibility to those provisions.
Item 5 - Division 10 of Part VII
50. Item 5 repeals and replaces the existing Division 10. This Division now deals solely with the independent representation of a child's interests. The existing provisions that relate to the best interests of children (Subdivision B, Division 10 of the Act) have now been relocated to Division 1, Part VII of the Act (Schedule 1, item 9) to give greater emphasis and visibility to those provisions.
Section 68L - Court order for independent representation of child's interests
51. Section 68L provides the court with power to make an order for the appointment of an independent children's lawyer to represent a child's interests in proceedings in which the child's best interest are the paramount, or a relevant, consideration.
52. Subsection 68L(1) explains that this section applies to proceedings under the Act in which the best interests of the child are, or the child's welfare is, the paramount or a relevant consideration. This provision is in exactly the same terms as subsection 68L(1) of the existing Act. The reason that it is in this Bill is because the whole of Division 10 has been repealed.
53. Subsection 68L(2) states that a court may order that a child's interests be independently represented by an independent children's lawyer if it appears that such representation is necessary in the proceedings. Under this subsection, the court may also make such other orders as it considers necessary to secure the independent representation of the child's interests.
54. This provision is similar to subsection 68L(2) of the existing Act, but changes the terminology to 'independent children's lawyer' and clarifies that it is the child's interests that will be represented (as explained below). The reason that it is in this Bill is because the whole of Division 10 has been repealed.
55. Subsection 68L(2) states that a lawyer should represent a child's 'interests', rather than represent the child. In its Report, the Council recommended that child representatives should act as independent advocates for the best interests of the child, rather than act on the instructions of the child. The Council considered that the feature of assisting the court while simultaneously allowing the child's voice to be heard is best fulfilled in this way. The Government considers that this is appropriate given the legislative requirement for the court to make decisions that are in the best interests of the child.
56. Subsection 68L(3) provides that in proceedings for the return of a child, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), the court may only make an order that a child's interests be independently represented by a lawyer if there are exceptional circumstances to justify the court doing so. The court must specify in the order those exceptional circumstances.
57. This provision is similar to subsection 68L(3) of the existing Act, but changes the terminology to 'independent children's lawyer' and clarifies that it is the child's interests that will be represented. The reason that it is in this Bill is because the whole of Division 10 has been repealed.
58. Under the Hague Convention, generally a country is required to send a child abducted to its jurisdiction, back to the country of habitual residence of the child prior to the abduction from that country. There should be no need, therefore, to inquire into the best interests of the child in Australia. That would be a matter for the country of habitual residence of the child.
59. Subsection 68L(4) explains that a court may make an order for the independent representation of a child's interests by a lawyer in the proceedings on its own initiative or on the application of the child, an organisation concerned with the welfare of children or any other person.
60. This provision is similar to subsection 68L(4) of the existing Act, but changes the terminology to 'independent children's lawyer'. The reason that it is in this Bill is because the whole of Division 10 has been repealed.
61. New subsection 68L(5) clarifies that the court may make an order under paragraph 68L(2)(b) for the purpose of allowing the lawyer who is to represent the child's interests to find out what the child's views are on the matters to which the proceedings relate. The purpose of this section is to clarify that the independent children's lawyer can seek the views of the child, despite the requirement that the independent children's lawyer come to their own conclusion on the available material about what is in the best interests of the child. Subsection 68L(5) does not limit paragraph 68L(2)(b) and the court may make other orders under that paragraph as it considers appropriate.
62. The note following subsection 68L(5) provides guidance to readers by referring them to section 60CE. That section states that a child cannot be required to express his or her views in relation to any matter. However, except for exceptional circumstances, it is expected that independent children's lawyers will have contact with children to discuss their views.
63. In accordance with subsection 68L(6), subsection 68L(5) will not apply where complying with that subsection would be inappropriate because of the child's age or maturity or some other special circumstance. For example, although the child may have firm views on which parent the child would like to live with, the child may have special needs that are best served by living with the other parent.
Section 68LA - Role of independent children's lawyer
64. New section 68LA sets out the role of the independent children's lawyer. In its Report, the Council expressed concerns about the minimal direction and guidance concerning the role of the child representative in the Act and recommended that this be addressed.
When section applies
65. Subsection 68LA(1) provides that the section will apply where an independent children's lawyer has been appointed in proceedings under the Act.
General nature of role of independent children's lawyer
66. Subsection 68LA(2) provides direction on the general nature of the role of the independent children's lawyer. The subsection states that an independent children's lawyer must form an independent view of what is in the best interests of the child and inform the court of that view. The independent children's lawyer must also act in relation to the proceedings in what the independent children's lawyer believes to be in the best interests of the child.
67. In accordance with the recommendation of the Council, the intention of such a provision is to clarify that the independent children's lawyer should act as an independent advocate for the best interests of the child, rather than act on the instructions of the child. The Government considers that this is appropriate, given the legislative requirement for a court to make a decision in the best interests of the child.
68. Subsection 68LA(3) states that if an independent children's lawyer is satisfied that a particular course of action is in the best interests of the child, the lawyer must make a submission to the court suggesting the adoption of that particular course of action. The intention of this provision is to provide guidance to the independent children's lawyer in situations where what they consider to be in the best interests of the child differs from the views expressed by the child. For example, where a child wants to live with the mother, the independent children's lawyer may consider that the child should reside with the father due to the mother's illness or incapacity. Subsection 68LA(3) does not limit the consideration of the independent children's lawyer in coming to a view about the best interests of the child referred to in paragraph 68LA(2)(a).
69. In addition to subsection 68LA(3), subsection 68LA(4) provides further confirmation that an independent children's lawyer is not the legal representative of the child and is not obliged to act on the child's instructions in relation to the proceedings. The intention of this provision is to provide absolute clarity on the precise role and obligations of the independent children's lawyer.
Specific duties of independent children's lawyers
70. Subsection 68LA(5) provides guidance to lawyers acting in the role of the independent children's lawyer and clarity to readers about the specific duties of the role. The Council considered the basic elements of the role of the child representative as set down by the Full Court of the Family Court in the case of P and P (1995) FLC 92-615 (P and P) should be incorporated into the Act. The elements are as follows:
- a.
- Act in an independent and unfettered way in the interests of the child.
- b.
- Act impartially, but if thought appropriate, make submissions suggesting the adoption by the court of a particular course of action if he or she considers that the adoption of such a course is in the best interests of the child.
- c.
- Inform the court by proper means of the children's wishes in relation to any matter in the proceedings. In this regard the separate representative is not bound to make submissions on the instructions of the child or otherwise but is bound to bring the child's expressed views to the attention of the court.
- d.
- Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the court.
- e.
- Test by cross-examination where appropriate the evidence of the parties and their witnesses.
- f.
- Ensure that the views and attitudes brought to bear on the issues before the court are drawn from the evidence and not from a personal view or opinion of the case.
- g.
- Minimise the trauma to the child associated with the proceedings.
- h.
- Facilitate an agreed resolution to the proceedings.
2. The Council recommended that the P and P elements be included in the legislation to address the minimal direction and guidance concerning the role of the child representative currently given in the Act.
3. Paragraph 68LA(5)(a) is based upon the direction in P and P that child representatives should act in an independent and unfettered way in the interests of the child. The provision states that an independent children's lawyer must act impartially in dealings with the parties to the proceedings. This provision acknowledges that an important part of the role of the independent children's lawyer is the function played outside of the courtroom. The independent children's lawyer may be working with all the parties to the proceedings to find creative solutions to the issues in dispute.
4. Paragraph 68LA(5)(b) directs that an independent children's lawyer must inform the court of the views that the child has expressed in relation to the matters to which the proceedings relate. This is consistent with the requirement of the court to consider the views of the child in making parenting orders that are in the best interests of the child. This again confirms that the independent children's lawyer is not bound to make submissions on the instructions of the child or otherwise, but is bound to bring the child's expressed views to the attention of the court. It is important to note that according to section 60CE, a person cannot require a child to express his or her views in relation to any matter.
5. In proceedings involving a report or other document that relates to the child, subparagraph 68LA(5)(c)(i) directs the independent children's lawyer to analyse the report or document to identify those matters that the independent children's lawyer considers to be the most significant for determining what is in the best interests of the child. Under subparagraph 68LA(5)(c)(ii), the independent children's lawyer must ensure that those matters are properly drawn to the court's attention.
6. Paragraph 68LA(5)(d) states that an independent children's lawyer should also endeavour to minimise the trauma to the child associated with the proceedings. This is based upon the similar factor in P and P. Clearly, the best interests of the child are served by reducing the stresses that such proceedings may inflict on a child. This provision is also consistent with other measures contained in Schedule 3 of this Bill to introduce a 'less adversarial' process for child-related proceedings.
7. Paragraph 68LA(5)(e) directs that an independent children's lawyer must facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child. Again, this is consistent with P and P. The Council noted that child representatives have a role to play in facilitating dispute resolution, taking into consideration their view of the best interests of the child.
Disclosure of information
8. In accordance with the Council's recommendation, new subsections 68LA(6), (7) and (8) provide clarification on the level of confidentiality that exists in the relationship between the independent children's lawyer and the child.
9. Subsection 68LA(6) provides that the independent children's lawyer is not under an obligation to disclose to the court and, importantly, cannot be required to disclose to the court any information that the child communicates to the independent children's lawyer. This is in accordance with the Council's recommendation that the child representative cannot be required, by any party or the court, to disclose information communicated to the child representative by the child. This is subject to subsection 68LA(7).
10. The intention of these provisions is to clarify the confidential relationship between the independent children's lawyer and the child and to enable a professional relationship to be established between them. Client legal privilege cannot operate for an independent children's lawyer who is acting in a best interests capacity, as the independent children's lawyer has an overriding duty to the court to present all relevant evidence and make submissions in the child's best interests. This provision will protect an independent children's lawyer from being required by any party or court to disclose information communicated to the independent children's lawyer by the child.
11. Subsection 68LA(7) provides that the independent children's lawyer may disclose to the court any information that the child communicates to them, if the independent children's lawyer considers the disclosure to be in the best interests of the child.
12. Subsection 68LA(8) states that the independent children's lawyer may disclose information to the court if the independent children's lawyer considers it to be in the child's best interests, even if this disclosure is made against the wishes of the child. This provision further confirms that the independent children's lawyer is acting as a best interests advocate, and not on the instructions of the child. It also balances the need for the independent children's lawyer to establish a professional relationship with the child while operating in the child's best interests.
Section 68M - Order that child be made available for examination
13. Section 68M gives the court power to order a person to make a child available for examination for the purposes of preparing a report. This section is in similar terms to section 68M in the existing Act, but changes the terminology to 'independent children's lawyer'. The reason that it is in this Bill is because the whole of Division 10 has been repealed.
14. Subsection 68M(1) explains that this section applies in proceedings under this Act if an independent children's lawyer has been appointed to represent a child's interests.
15. Subsection 68M(2) provides that the court may, on the application by the independent children's lawyer, order a person to make the child available as specified in the order, for an examination to be made for the purposes of preparing a report about the child. This report is for use by the independent children's lawyer in connection with the proceedings.
16. Subsection 68M(3) provides that the order that a child be made available for examination can be directed to a parent of the child, a person who has parental responsibility for the child or with whom the child may live, spend time or communicate with under a parenting order. This provision reflects the terminology changes contained in Schedule 8 of this Bill to remove the references to 'residence' and 'contact'.
Item 6 - Subparagraph 69W(2)(b)(ii)
17. Subparagraph 69W(2)(b)(ii) details the circumstances in which parentage testing orders may be made. This item substitutes the reference to 'a person representing the child' with 'an independent children's lawyer representing the child's interests'. This is in accordance with the removal of references to 'child representative' in item 1 of this Schedule.
Item 7 - Subparagraph 69ZC(3)(b)(ii)
18. Subparagraph 69ZC(3)(b)(ii) details the circumstances in which a parentage testing report may be received in evidence. This item substitutes the reference to 'a person representing the relevant child' with 'an independent children's lawyer representing the relevant child's interests'. This is in accordance with the removal of references to 'child representative' in item 1 of this Schedule.
Item 8 - Subsection 117(3)
19. Subsection 117(3) gives the court power to make an order for the payment of the child representative's costs. This item replace the reference to 'a child representative' at the beginning of the provision with one to 'an independent children's lawyer for a child'. This is in accordance with the removal of references to 'child representative' in item 1 of this Schedule.
Item 9 - Subsection 117(3)
20. Subsection 117(3) gives the court power to make an order for the payment of the child representative's costs. This item repalces the reference to 'the child representative' at the end of the provision with one to 'the independent children's lawyer'. This is in accordance with the removal of references to 'child representative' in item 1 of this Schedule.
Item 10 - Subsection 117(4)
21. Subsection 117(4) details the circumstances where a court must not order payment of a child representative's costs. This item replaces the reference to 'a child representative' at the beginning of the provision with one to 'an independent children's lawyer for a child'. This is in accordance with the removal of references to 'child representative' in item 1 of this Schedule.
Item 11 - Subsection 117(4)
22. Subsection 117(4) details the circumstances where a court must not order payment of a child representative's costs. This item replaces the reference to 'the child representative' at the end of the provision with one to 'the independent children's lawyer' (wherever occurring). This is in accordance with the removal of references to 'child representative' in item 1 of this Schedule.
Item 12 - Subsection 117(5)
23. Subsection 117(5) states that the funding of the child representative must be disregarded in the court's consideration of a costs order. This item replaces the reference to 'a child representative' at the beginning of the provision with one to 'an independent children's lawyer'. This is in accordance with the removal of references to 'child representative' in item 1 of this Schedule.
Item 13 - Subsection 117(5)
24. Subsection 117(5) states that the funding of the child representative must be disregarded in the court's consideration of a costs order. This item replaces the reference to 'the child representative', where it appears later on in the provision, with one to 'the independent children's lawyer'. This is in accordance with the removal of references to 'child representative' in item 1 of this Schedule.
Part 2 - Application of amendments and saving of appointments
Item 14 - Definitions
25. Item 14 specifies that in this Part 'commencement' means the commencement of Schedule 5, 'old Act' means the Act as in force immediately before that commencement (the existing Act), and 'new Act' means the Act as in force after that commencement (the amended Act).
Item 15 - Application of amendments
26. Item 15 states that the amendments made by Schedule 5 will apply to proceedings initiated under Part VII on or after the day on which that Schedule commences.
Item 16 - Saving of appointments
27. Paragraph 1 states that this item will apply if a court has made an order under section 68L for the child to be separately represented and, immediately before commencement, the proceedings in which the order was made have not been concluded.
28. Paragraph 2 states that a 'child representative' who was appointed under section 68L of the current Act, or 'old Act', is taken to be appointed as the 'independent children's lawyer' under section 68L of the amended Act, the 'new Act'. The purpose of this paragraph is to ensure that a separate representative appointed under section 68L of the existing Act, will be deemed to be an independent children's lawyer for the amended Act. A further order for the appointment of an independent children's lawyer will not be required.
29. Paragraph 3 states that an order under section 68L of the old Act for separate representation of the child is taken to be an order under section 68L of the new Act for independent representation of the child's interests. This will ensure that any recent orders made by the court appointing a separate representative will apply. A further order for an independent children's lawyer will not be required.
SCHEDULE 6 - FAMILY VIOLENCE
30. Schedule 6 repeals and replaces the existing Division 11. This Division deals with the relationship between orders made under the Family Law Act 1975 (the Act) that provide for a child to spend time with a person, and family violence orders made under a law of a State or Territory to protect a person from family violence.
31. The amendments seek to make Division 11 clearer, more concise and easier to understand by the people who use and implement it, in particular, for State and Territory Magistrates making family violence orders.
32. The amendments implement recommendations to simplify and improve the operation of the provisions in Division 11, made by the Family Law Council in its letter of advice to the Attorney-General dated 16 November 2004.
33. The amendments also remove references to the term 'contact' from the Division to ensure the Division's terminology is consistent with the new terminology introduced in Schedule 8 of this Act.
Item 1 - Division 11 of Part VII
34. Item 1 repeals and replaces the existing Division 11. This Division deals with the relationship between orders made under the Act that provide for a child to spend time with a person, and family violence orders made under a law of a State or Territory to protect a person from family violence.
Section 68N - Purposes of this Division
35. Section 68N clarifies the purposes of Division 11. The purposes are to:
- •
- resolve inconsistencies between State and Territory family violence orders and orders made under the Act that provide for a child to spend time with a person, and
- •
- achieve the objects and principles set out in section 60B. These principles include ensuring that a child benefits from a meaningful relationship with both parents and ensuring that the child is protected from harm.
36. Division 11 attempts to achieve these purposes in two ways. Firstly, where a court exercising jurisdiction under the Act makes an order providing for a child to spend time with a person and this order is inconsistent with an existing family violence order, section 68P places obligations on the court to explain to the parties affected (or arrange for someone else to explain to them), the effect and consequences of the order and how it is to be complied with.
37. Secondly, when an application for a family violence order is made in a State or Territory court, Division 11 gives that court the power to amend an existing family law order providing for a child to spend time with a person, if this is necessary to give effect to the family violence order. Giving this power to State and Territory courts is necessary to protect people, particularly children, where a family law order may expose them to violence or risk of violence. It also ensures that this is done with appropriate consideration of the objects and principles in Part VII of the Act.
Section 68P - Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order
38. Section 68P sets out what a court exercising jurisdiction under the Act must do when there is an existing State or Territory family violence order in place and the court makes an order (or grants an injunction) that is inconsistent with it. This could arise, for example, where the court exercising family law jurisdiction makes an order that a child spend time with a person even though an earlier family violence order might prevent this occurring.
39. Subsection 68P(1) sets out when the section applies. It provides that the section applies if a court exercising family law jurisdiction makes certain orders or injunctions and these orders or injunctions are inconsistent with an existing State and Territory family violence order. The relevant orders and injunctions are described in subparagraphs (1)(a)(i), (ii) and (iii) of section 68P. They include a parenting order that provides for a child to spend time with a person or authorises a person to spend time with a child, a recovery order (as defined in section 67Q), or an injunction under sections 68B or 114. Section 68B sets out the types of injunctions a court can grant for the welfare of a child. Section 114 sets out the types of injunctions a court can grant in proceedings between parties to a marriage in circumstances arising out of the marital relationship, which include an injunction for the personal protection of one of the parties.
40. By listing the orders to which section 68R applies, subsection 68P(1) removes the need for the existing definition of 'section 68P contact order'. This is consistent with the changes in Schedule 5 which remove references to the terms 'residence' and 'contact' from the Act. It will simplify the application of Division 11.
41. Subsection 68P(2) sets out what the court's obligations are when it makes an order or injunction which is inconsistent with an existing family violence order. The obligations only apply to the extent to which the order or injunction provides for the child to spend time with a person or authorises a person to spend time with the child. The court is required to:
- •
- state in the family law order or injunction that it is inconsistent with an existing State or Territory family violence order (paragraph (a))
- •
- give a detailed explanation of how the contact that the order provides for is to take place (paragraph (b)), and
- •
- explain the order or injunction to the applicant and respondent, the person against whom the family violence order is directed (if not the applicant or respondent) and the person protected by the family violence order (if not the applicant or respondent) (paragraph (c)).
These provisions ensure that all people affected by the order are informed about it and understand its implications.
42. The court is required to include in the explanation:
- •
- the purpose of the order or injunction
- •
- the obligations the order or injunction creates (including how the contact that it provides for is to take place)
- •
- the consequences if a person fails to comply with the order or injunction
- •
- its reasons for making an order or granting an injunction that is inconsistent with a family violence order, and
- •
- the circumstances in which a person may apply to vary or revoke the order or injunction (paragraph 68P(3)(d)).
43. The intention is to both ensure that the court has to consider the effect of making an order that is inconsistent with an existing family violence order and explain to the parties how the new order will work. This will ensure that all affected people are made aware of the new order and that the order contains appropriate safeguards.
44. The court does not necessarily have to provide the explanation itself. It can arrange for another person, such as a family consultant, to do so.
45. Subsection 68P(3) provides that where the court exercising family law jurisdiction makes an order or injunction that is inconsistent with an existing family violence order, it must give a copy of the order to each of the persons listed in paragraphs (a) to (f). This ensures that all people affected by the order or involved in the enforcement of the order have a copy of it and are aware of what has happened. This should resolve confusion that may otherwise occur about the effect of the other inconsistent orders. The court must provide the copies as soon as it is practicable and no later than 14 days after making the order or granting the injunction.
46. Subsection 68P(4) provides that the validity of the order or injunction is not affected by a failure to comply with the section. This will prevent technical defects after the court has already considered the matter. This is appropriate given the high cost of having a matter heard.
Section 68Q - Relationship of order or injunction made under this Act with existing inconsistent family violence order
47. Section 68Q is an important provision which clarifies the relationship between family law orders which provide for a child to spend time with a person and State or Territory family violence orders.
48. Subsection 68Q(1) provides that where an order which provides for a child to spend time with a person is inconsistent with a State or Territory family violence order, the order which provides for a child to spend time with a person prevails and the family violence order is invalid to the extent of the inconsistency.
49. Subsection 68Q(2) provides that:
- •
- an applicant or respondent,
- •
- the person against whom the family violence order is directed, or
- •
- the person protected by the family violence order
may apply to the court for a declaration that the order or injunction is inconsistent with the family violence order.
50. Under subsection 68Q(3), the court must hear and determine the application and make such declarations as it considers appropriate. The making by the court of a declaration would make it clear that a later family law order is meant to be inconsistent with the earlier family violence order.
Section 68R - Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act
Power
51. Subsection 68R(1) gives a court of a State or Territory dealing with an application for a family violence order, the power to revive, vary, discharge or suspend family law orders, injunctions and arrangements that provide for a child to spend time with a person. The orders, injunctions and arrangements are described in paragraphs 68R(1)(a) to (d).
52. The court may revive, vary, discharge or suspend these orders, injunctions and arrangements on its own initiative or on the application by any person. This provides protection for children and their parents where a family law order may expose them to violence or risk of violence.
Limits on power
53. Subsections 68R(3) and (4) set out the limits on the courts powers under this section. Paragraph 68R(3)(a) provides that the court must not revive, vary, discharge or suspend an order, injunction or arrangement (as set out in subsection 68R(1)) unless it also makes or varies a family violence order in the proceedings (whether or not by interim order).
54. Paragraph 68R(3)(b) provides that the court must not revive, vary, discharge or suspend an order or injunction mentioned in paragraphs 68R(1)(a), (b) and (c) unless the court has material before it that was not before the court that made the order or injunction. The intention is to prevent parties circumventing family law orders by applying to a State or Territory court where there is no new evidence of violence or abuse.
55. Under subsection 68R(4), the court must not exercise its power under subsection 68R(1) to discharge an order, injunction or arrangement in proceedings to make an interim family violence order or an interim variation of a family violence order. It would be inappropriate for the court to discharge a family law order, injunction or arrangement on the basis of limited evidence available at an interim hearing.
Relevant considerations
56. Subsection 68R(5) clarifies what a State or Territory court making a family violence order should relevantly consider when exercising its power to revive, vary, discharge or suspend a family law order, injunction or arrangement (as set out in subsection 68R(1)).
57. Paragraph 68R(5)(a) provides that the court must have regard to the purposes of the Division (as set out in section 68N).
58. Paragraph 68R(5)(b) provides that the court must also have regard to whether contact with both parents is in the best interests of the child.
59. Paragraph 68R(5)(c) provides that before varying, discharging or suspending an order or injunction (as set out in paragraphs 68R(1)(a),(b) and (c)) that was inconsistent with an existing family violence order when it was made or granted, the court must be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order or injunction. This is to prevent orders or injunctions obtained under the Family Law Act from being varied, discharged or suspended, unless there is evidence that the order or injunction has exposed, or is likely to expose, a person to the risk of family violence.
Registration of revival, variation, discharge or suspension of orders and other arrangements
60. Subsection 68R(6) provides for a regulation making power for the registration of court orders reviving, varying, discharging or suspending a family law order, injunction or arrangement. Failure to comply with a registration requirement under regulations that are made does not affect the validity of the court's decision.
Section 68S - Application of Act and Rules when exercising section 68R power
61. Section 68S clarifies that some provisions of the Act and Rules may not apply when a State or Territory court is exercising its power under section 68R to revive, vary, discharge or suspend an order, injunction or arrangement under the Act.
62. Subsection 68S(1) sets out a list of provisions that do not apply. Paragraph 68S(1)(f) contains a provision allowing for regulations to specify that other provisions do not apply.
63. Paragaph 68S(2)(a) provides that if a State or Territory court is exercising its power under section 68R in proceedings to make an interim family violence order (or interim variation of a family violence order), the court has a discretion about whether to apply paragraph 60CC(3)(a). Paragraph 60CC(3)(a) allows the court to take into consideration any views expressed by the child when determining the child's best interests. Paragaph 68S(2)(b) provides for a regulation making power for other provisions of the Act or applicable Rules of Court to be specified not to apply in State or Territory court proceedings of this kind.
64. Subsection 68S(3) provides a power for a court exercising its power under section 68R to dispense with any otherwise applicable Rules of Court.
Section 68T - Special provisions relating to proceedings to make an interim (or interim variation of) family violence order
65. Section 68T makes special provision for proceedings involving interim family violence orders or interim variations of family violence orders. Subsection 68T(1) provides that in such proceedings, if the court revives, varies or suspends an order, injunction or arrangement under section 68R, that revival, variation or suspension ceases to have effect at the time the interim order stops being in force, or 21 days after the interim order was made (whichever is earlier). No appeal lies in relation to the revival, variation or suspension (subsection 68T(2)).
66. The intention of this provision is to allow a State or Territory court making interim family violence orders to revive, vary or suspend the operation of family law orders, such as parenting orders about the time a child is to spend with a person, for a period of three weeks. This three week period will provide an opportunity for an application to be made to amend the family law orders. This provision balances the competing interests of providing immediate protection from violence and ensuring that any changes to family law orders are dealt with in a short period and with due process.
Part 2 - Application of amendments and savings
Item 2 - Definitions
67. This item sets out the definitions of terms used in Part 2, which deals with the application of the provisions in the Schedule and saving the regulations made under the existing Act.
Item 3 - Application of amendments
68. This item clarifies that the amendments made by Part 1 apply to orders made after the provisions of the Schedule commence, whether or not the application for the order was made before or after that time. This is appropriate as these provisions do not change the substance of this Division by redrafting them in a clearer and more accessible way.
Item 4 - Saving of regulations
69. This item provides for the saving of regulations made under the existing Act. It provides that even where a provision of the existing Act (specified in the table) has been repealed, regulations that were made for the purposes of that provision, and were in force immediately before the commencement of this Schedule, continue to have effect as if they had been made for the purposes of the corresponding provision of the new Act (also specified in the table).
SCHEDULE 7 - JURISDICTION OF COURTS
70. Schedule 7 repeals the property limit provision contained in the the Act that prevents the Federal Magistrates Court (FMC) from exercising jurisdiction in property proceedings where the value of the property exceeds $700,000 unless both parties consent.
71. The FMC currently shares jurisdiction for family law matters with the Family Court of Australia (FCA). The FMC was established in order to deal with simpler and less complex matters.
72. As part of the package of reforms to the family law system, the FCA and the FMC are developing a combined registry for family law matters. The aim of the combined registry is to make the court system easier to navigate by providing a single point of entry to the family court system. The development of a combined registry addresses issues raised in the Every picture tells a story report and the Australian National Audit Office report on client service in the FCA and FMC.
73. An important component of the combined registry is the ability to refer matters to the most appropriate court (through the use of transfer mechanisms such as those set out in section 33B of the Act and section 39 of the Federal Magistrates Act 1999). The $700,000 property limit creates unnecessary rigidity in the system. These amendments will enable property matters to be more effectively channelled to the most appropriate court and provide opportunities for the courts to maximise their use of resources.
Item 1: Section 45A
74. This item repeals Section 45A. Currently, section 45A provides that the FMC must transfer proceedings to the FCA if the property value exceeds $300,000, or if another amount is specified in the regulations - that other amount. Pursuant to sub-regulation 12AC(2) of the Family Law Regulations 1984 the amount of $700,000 is specified for the purposes of Section 45A of the Act.
75. The FMC is only required to transfer proceedings where the property value exceeds $700,000 to the FCA if the respondent seeks a different order to that of the applicant and both parties do not consent to the FMC hearing and determining the proceedings.
76. By repealing section 45A the FMC will be able to exercise jurisdiction for all property proceedings regardless of the value of the property or the consent of the parties.
Item 2: Application of Amendment
77. This item provides that the amendment made by item 1 applies to proceedings instituted before or after the commencement of that item. This provides the FCA with the flexibility to transfer pending property proceedings to the FMC where the FMC is the more appropriate court to deal with the matter.
SCHEDULE 8 - REMOVAL OF REFERENCES TO RESIDENCE AND CONTACT
78. Schedule 8 changes the terminology of the Act to remove references to the terms 'residence', 'contact' and 'specific issues orders'. Changes to the Act in 1995 adopted the terms 'residence' and 'contact' instead of 'custody' and 'access' in order to eliminate any sense of ownership of children. However, the intended change of culture has not been achieved and the FCAC Report recommended that more family friendly terms such as 'parenting time' be used.
79. In the majority of cases the amendments replace references to 'residence' with 'lives with' and references to 'contact' with 'spends time with' and 'communicates with'. The amendments also remove the current categories of residence, contact and specific issues orders from parenting orders and refer simply to parenting orders. Child maintenance orders are retained as a separate category of parenting orders. This is due to the direct link between child maintenance orders and orders made pursuant to the child support scheme.
80. The changes will focus the court and the parties on parenting as the central issue. In particular, this will emphasise the need for parents to think more broadly about what parenting means and the impact of the proceedings upon the child.
81. These amendments substantially implement recommendation 4 of the FCAC Report. They require consequential amendments to the terminology that is used in the Australian Citizenship Act 1948, the Australian Citizenship Act 2005, the Australian Passports Act 2005, the Child Support (Assessment) Act 1989 and the Migration Act 1958.
Part 1 - Amendments
Australian Citizenship Act 1948
Item 1 - Paragraphs 5(2)(b) and (c)
82. Item 1 amends the definition of 'responsible parent' in section 5 of the Australian Citizenship Act 1948 to remove the references to residence orders and specific issues orders. These references are replaced with references to parenting orders under which a child is to live with a person and parenting orders under which a person has parental responsibility for a child's long-term or day-to-day care, welfare and development. This amendment ensures that the more generic description of 'parenting orders' operates.
Australian Citizenship Act 2005
Item 2 - Paragraphs 6(1)(b) and (c)
83. Item 2 amends the definition of 'responsible parent' in section 6 of the Australian Citizenship Act 2005 to remove the references to residence orders and specific issues orders. These references are replaced with references to parenting orders under which a child is to live with a person and parenting orders under which a person has parental responsibility for a child's long-term or day-to-day care, welfare and development. This amendment ensures that the more generic description of 'parenting orders' operates.
Australian Passports Act 2005
Item 3 - Paragraphs 11(5)(b) and (c)
84. Item 3 repeals paragraphs 11(5)(b) and (c) of the Australian Passports Act 2005 which define having parental responsibility for a child by reference to a 'residence order', 'contact order', or 'specific issues order'. These references are replaced by references to parenting orders under which a child lives or spends time with a person and parenting orders under which a person has responsibility for a child's long-term or day-to-day care, welfare and development. This amendment ensures that the more generic description of 'parenting orders' operates.
Item 4 - Subsection 11(6)
85. Item 4 repeals subsection 11(6) of the Australian Passports Act 2005 which defines 'contact order', 'residence order' and 'specific issues order' by reference to the Act. This terminology is no longer used in the Act.
Child Support (Assessment) Act 1989
86. These provisions change the terminology in the Child Support (Assessment) Act 1989 (Child Support Act) to remove references to the term 'contact' as a consequence of the removal of this term from the Act. 'Contact' is being replaced by terms such as 'care' or 'spending time with', depending on the context. These changes are technical in nature and do not change the substance of the amended provisions.
Item 5 - Section 5
87. Item 5 introduces the term 'major care' in section 5 the Child Support Act, which is the definition section of that Act. The term replaces the term 'major contact' which is repealed by item 6. This amendment updates the terminology to remove the reference to contact.
Item 6 - Section 5 (definition of major contact)
88. Item 6 repeals the definition of 'major contact' in section 5 of the Child Support Act, which is the definition section of that Act. The term is replaced by 'major care' which is inserted by item 5. This amendment updates the terminology to remove the reference to contact.
Item 7 - Section 5 (subparagraph (a)(ii) of the definition of relevant dependent child)
89. Item 7 replaces the term 'major contact' in subparagraph (a)(ii) of the definition of 'relevant dependent child' in section 5 of the Child Support Act, which is the definition section of that Act, with the term 'major care' which is inserted by item 5. This amendment updates the terminology to remove the reference to contact.
Item 8 - Section 5
90. Item 8 introduces the term 'substantial care' in section 5 of the Child Support Act, which is the definition section of that Act. The term replaces the term 'substantial contact' which is repealed by item 9. This amendment updates the terminology to remove the reference to contact.
Item 9 - Section 5 (definition of substantial contact)
91. Item 9 repeals the definition of 'substantial contact' in section 5 of the Child Support Act, which is the definition section of that Act. The term is replaced by 'substantial care' inserted by item 8. This amendment updates the terminology to remove the reference to contact.
Item 10 - Paragraph 7B(1)(b)
92. Item 10 changes the phrase 'contact with' to 'care of' in paragraph 7B(1)(b) of the Child Support Act. Section 7B of the Child Support Act sets out the meaning of eligible carer. This amendment updates the terminology to remove the reference to contact.
Item 11 - Paragraph 7B(1)(d)
93. Item 11 changes the phrase 'contact with' to 'care of' in paragraph 7B(1)(d) of the Child Support Act. Section 7B of the Child Support Act sets out the meaning of eligible carer. This amendment updates the terminology to remove the reference to contact.
Item 12 - Paragraph 7B(2)(a)
94. Item 12 changes the phrase 'provides care for a child, shares care of a child or has contact with' to 'cares for' in paragraph 7B(2)(a) of the Child Support Act. Section 7B of the Child Support Act sets out the meaning of eligible carer. This amendment updates the terminology to remove the reference to contact.
Item 13 - Paragraph 7B(2)(c)
95. Item 13 changes the phrase 'providing or sharing such care, or having such contact' to 'caring for the child' in paragraph 7B(2)(c) of the Child Support Act. Section 7B of the Child Support Act sets out the meaning of eligible carer. This amendment updates the terminology to remove the reference to contact.
Item 14 - Subsection 7B(2)
96. Item 14 changes the phrase 'provide care for, share such care or having such contact' to 'care for the child' in subsection 7B(2). Section 7B of the Child Support Act sets out the meaning of eligible carer. This amendment updates the terminology to remove the reference to contact.
Item 15 - Subsection 7B(3)
97. Item 15 changes the phrase 'provide care for, share care of or have contact with' to 'care for' in subsection 7B(3). Section 7B of the Child Support Act sets out the meaning of eligible carer. This amendment updates the terminology to remove the reference to contact.
Item 16 - Subparagraph 8(3)(b)(ii)
98. Item 16 changes the phrase 'contact with' to 'care of' in subparagraph 8(3)(b)(ii) of the Child Support Act. Section 8 defines major and substantial care of a child. This amendment updates the terminology to remove the reference to contact.
Item 17 - Paragraph 8(3)(c)
99. Item 17 changes the phrase 'contact with' to 'care of' in paragraph 8(3)(c) of the Child Support Act. Section 8 defines major and substantial care of a child. This amendment updates the terminology to remove the reference to contact.
Item 18 - Paragraph 8(3)(d)
100. Item 18 changes the phrase 'contact with' to 'care of' in paragraph 8(3)(d) of the Child Support Act. Section 8 defines major and substantial care of a child. This amendment updates the terminology to remove the reference to contact.
Item 19 - Paragraph 8A(1)(a)
101. Item 19 changes the phrase 'the contact between a child and' to 'the time a child is to spend with' in paragraph 8A(1)(a) of the Child Support Act. Section 8A modifies the meaning of care of a child where there has been a contravention of a court order. This amendment updates the terminology to remove the reference to contact.
Item 20 - Paragraph 8A(1)(d)
102. Item 20 changes the wording of paragraph 8A(1)(d) of the Child Support Act. Section 8A modifies the meaning of care of a child where there has been a contravention of a court order. This amendment is for clarification only and does not change the substance of the amended provision.
Item 21 - Paragraphs 8A(2)(a) and (b)
103. Item 21 changes the wording of paragraphs 8A(2)(a) and (b) of the Child Support Act to be consistent with the changes to paragraph 8A(1)(d). Section 8A modifies the meaning of care of a child where there has been a contravention of a court order. This amendment is for clarification only and does not change the substance of the amended provision.
Item 22 - Subsection 8A(4)
104. Item 22 changes the phrase 'contact with' to 'care of' in subsection 8A(4) of the Child Support Act. Section 8A modifies the meaning of care of a child where there has been a contravention of a court order. This amendment updates the terminology to remove the reference to contact.
Item 23 - Subsection 8A(5)
105. Item 23 changes the phrase 'contact with' to 'care of' in subsection 8A(5) of the Child Support Act. Section 8A modifies the meaning of care of a child where there has been a contravention of a court order. This amendment updates the terminology to remove the reference to contact.
Item 24 - Subsection 8A(6)
106. Item 24 changes the phrase 'contact with' to 'care of' in subsection 8A(6) of the Child Support Act. Section 8A modifies the meaning of care of a child where there has been a contravention of a court order. This amendment updates the terminology to remove the reference to contact.
Item 25 - Paragraph 48(1)(da)
107. Item 25 changes the phrase 'with whom the parent has substantial contact' to 'of whom the parent has substantial care' in paragraph 48(1)(da) of the Child Support Act. Section 48 sets out how the basic formula is applied where both parents share the care of their child or children. This amendment updates the terminology to remove the reference to contact.
Item 26 - Paragraph 48(1)(e)
108. Item 26 removes the terms 'major contact' and 'substantial contact' and replaces them with 'major care' and 'substantial care' in paragraph 48(1)(e) of the Child Support Act. Section 48 sets out how the basic formula is applied where both parents share the care of their child or children. This amendment updates the terminology to remove the reference to contact.
Item 27 - Paragraph 54(1)(b) (definition of number of children in carer's care)
109. Item 27 removes the terms 'major contact' and 'substantial contact' and replaces them with 'major care' and 'substantial care' in paragraph 54(1)(b) of the Child Support Act. Section 54 sets out how the basic formula is applied where a parent is liable in relation to two or more carers. This amendment updates the terminology to remove the reference to contact.
Item 28 - Section 54 (example 2)
110. Item 28 changes the phrase 'substantial contact' to 'substantial care' in example 2 in section 54 of the Child Support Act. Section 54 sets out how the basic formula is applied where a parent is liable in relation to two or more carers. This amendment updates the terminology to remove the reference to contact.
Item 29 - Paragraph 54A(1)(a)
111. Item 29 removes the phrase 'and contact' in paragraph 54A(1)(a) of the Child Support Act. Section 54A describes the cases in which Subdivision H of that Act applies. This amendment updates the terminology to remove the reference to contact.
Item 30 - Subparagraph 54A(1)(b)(ii)
112. Item 30 changes the phrase 'contact with' to 'care of' in subparagraph 54A(1)(b)(ii) of the Child Support Act. Section 54A describes the cases in which Subdivision H of that Act applies. This amendment updates the terminology to remove the reference to contact.
Item 31 - Paragraph 54B(1)(e)
113. Item 31 changes the phrase 'with whom the parent has substantial contact' to 'of whom the parent has substantial care' in paragraph 54B(1)(e) of the Child Support Act. Section 54B of the Child Support Act sets out how the basic formula is applied where there has been a contravention of a court order. This amendment updates the terminology to remove the reference to contact.
Item 32 - Subparagraph 54B(1)(f)(i)
114. Item 32 changes the phrase 'with whom the carer has major contact' to 'of whom the carer has major care' in subparagraph 54B(1)(f)(i) of the Child Support Act. Section 54B sets out how the basic formula is applied where there has been a contravention of a court order. This amendment updates the terminology to remove the reference to contact.
Item 33 - Subparagraph 54B(1)(f)(ii)
115. Item 33 changes the phrase 'with whom the carer has substantial contact' to 'of whom the carer has substantial care' in subparagraph 54B(1)(f)(ii) of the Child Support Act. Section 54B sets out how the basic formula is applied where there has been a contravention of a court order. This amendment updates the terminology to remove the reference to contact.
Item 34 - Paragraph 98C(2)(b)
116. Item 34 replaces the reference in paragraph 98C(2)(b) to 'sub-sub-paragraph 117(2)(b)(i)(C)' with a reference to 'subparagraph 117(2)(b)(ib)'. Section 98C sets out the matters as to which a Registrar must be satisfied before making determination under the Child Support Act. This is a consequential amendment due to the changes introduced by item 35 of this Schedule, below.
Item 35 - Subparagraph 117(2)(a)(iv)
117. Item 35 repeals and replaces subparagraph 117(2)(a)(iv) of the Child Support Act which provides that a court may depart from the formula assessment prescribed in the Act, where a parent has high costs enabling the parent to have contact with a child. This item substitutes the word 'contact' with 'care for'. This amendment updates the terminology to remove the reference to contact.
118. The costs of a parent caring for the child are intended to be included in the court's consideration. This can include travel, telephone costs and accommodating the child during periods of care. These reasons are not intended to be limited and could possibly include legal costs of seeking orders to enable a parent to maintain their relationship with the child. However, this is not intended to apply to costs incurred when seeking an order as to where the child is to live.
Item 36 - Subparagraph 117(2)(b)(i)
119. Item 36 repeals subparagraph 117(2)(b)(i) of the Child Support Act which provides that a court may depart from the formula assessment prescribed in the Act, where high costs are involved in enabling a parent to have contact with a child. This item substitutes the word 'contact' with 'care for'. This amendment updates the terminology to remove the reference to contact.
120. The possible 'high costs' of caring for a child are described in item 35 of this Schedule, above.
Item 37 - Subsection 117(3)
121. Item 37 amends subsection 117(3) of the Child Support Act which sets out when 'high costs' of contact will be established. The phrase 'have contact with' is changed to 'care for'. This amendment updates the terminology to remove the reference to contact.
Item 38 - Subsection 117(3)
122. Item 38 replaces the reference in subsection 117(3) to 'sub-sub-paragraph 117(2)(b)(i)(A)' with a reference to 'subparagraph 117(2)(b)(i)'. This is a consequential amendment due to the changes introduced by item 35 of this Schedule, above.
Item 39 - Subsections 117A(3A) and (3B)
123. Item 39 replaces the reference in subsection 117(3) to 'sub-sub-paragraph 117(2)(b)(i)(C)' with a reference to 'subparagraph 117(2)(b)(ib)'. This is a consequential amendment due to the changes introduced by item 35 of this Schedule, above.
Family Law Act 1975
Item 40 - Subsection 4(1) (definition of contact order)
124. Item 40 repeals the definition of 'contact order' in section 4, which is the definition section of the Act, to ensure the more generic description of parenting orders operates.
Item 41 - Subsection 4(1) (definition of has)
125. Item 41 repeals the definition of 'has' in section 4, which is the definition section of the Act, which refers to a person who has a residence, contact or specific issues order. This terminology is no longer relevant.
Item 42 - Subsection 4(1) (definition of made in favour)
126. Item 42 repeals and replaces the definition of 'made in favour' in section 4, which is the definition section of the Act. The new definition changes the reference from 'a residence, contact and specific issues order' to 'a parenting order.' This ensures the more generic description of parenting orders operates.
Item - 43 - Subsection 4(1) (definition of overseas child order)
127. Item 43 moves to the definition provision in subsection 4(1) the definition of 'overseas child order', which is currently in Subdivision C of Division 13 of Part VII. Subdivision C deals with the registration of overseas orders providing for children. The definition has been amended to include an order that provides for a person to spend time with a child. This change is consequential to the removal of the references to residence and contact from the Act.
Item 44 - Subsection 4(1) (definition of residence order)
128. Item 44 repeals the definition of 'residence order' in section 4, which is the definition section of the Act, to ensure the more generic description of parenting orders operates.
Item 45 - Subsection 4(1) (definition of specific issues order)
129. Item 45 repeals the definition of 'specific issues order' in section 4, which is the definitions section of the Act, to ensure the more generic description of parenting orders operates.
Item 46 - Subsection 4(1)
130. Item 46 moves to the definition provision in subsection 4(1) the definition of 'State child order', which is currently in Subdivision B of Division 13 of Part VII. Subdivision B deals with the registration of State and Territory orders providing for children. The definition has been amended to include an order that provides for a person to spend time with a child. This change is consequential to the removal of the references to residence and contact from the Act.
Item 47 - Subsection 4(1)
131. Item 47 inserts in the definition provision in subsection 4(1) a new definition of 'Subdivision C parenting order'. Subdivision C of Division 13 deals with the registration of overseas orders. A 'Subdivision C parenting order' is defined to include a parenting order to the extent that it deals with whom a child lives with, spends time with or who is to be responsible for a child's day to day care, welfare and development. This new definition replaces the definition of 'care order' in the existing section 70F which is repealed by item 60 of Schedule 9. The amendment ensures that the more generic description of parenting orders operates.
Item 48 - Subsection 26B(1A)
132. Item 48 amends the definition of an 'excluded child order' in section 26B(1A) to remove references to residence, contact and specific issues orders. This ensures the more generic description of parenting orders operates.
133. The power to make excluded child orders cannot be delegated to judicial registrars under section 26B(1) which is the section that sets out the powers that may be delegated to judicial registrars.
Item 49 - Subsection 37A(2A)
134. Item 49 amends the definition of 'excluded child orders' in section 37A(2A) to remove references to residence, contact and specific issues orders. This ensures the more generic description of parenting orders operates.
135. The power to make excluded child orders cannot be delegated to registrars under section 37, which is the section that deals with the delegation of the powers of the Court to registrars.
Item 50 - Section 60C (table item 6)
136. Item 50 adds to the description of Division 6 in the table in section 60C of the Act. This table gives an outline of Part VII of the Act (Children). A reference to attending family dispute resolution is added to the description of what Division 6 of the Act does. The addition clarifies that the division deals with the applying for and making of parenting orders, (other than child maintenance orders) after parties have attended family dispute resolution where this is necessary.
137. New section 60I inserted by Schedule 1 provides for compulsory attendance at family dispute resolution in a range of circumstances, prior to lodging an application with the court. This is a key change to encourage a culture of agreement making and avoidance of an adversarial court system.
Item 51 - Section 60C (table item 6)
138. Item 51 removes the reference to residence, contact and specific issues orders in item 6 of the table in section 60C of the Act. This table gives an outline of Part VII of the Act (Children). The change is to reflect the generic description of parenting orders that now operates in Part VII.
Item 52 - Section 60C (table item 11)
139. Item 52 removes the reference to 'contact orders etc.' in item 11 of the table in section 60C of the Act. This table gives an outline of Part VII of the Act (Children). The term 'contact orders etc.' is replaced with 'parenting orders'. This is to ensure the more generic description of parenting orders operates.
Item 53 - Section 60C (table item 13A)
140. Item 53 removes the reference to 'for contact foregone' in item 13 of the table in section 60C of the Act. This table gives an outline of Part VII of the Act (Children). Item 13 describes Division 13A which relates to enforcement of orders affecting children. The reference to 'for contact foregone' is replaced with the more general description of who a child did not spend time with or did not live with. This amendment updates the terminology to remove the reference to contact.
Item 54 - Subsection 63C(4)
141. Item 54 repeals and replaces subsection 63C(4) which is the subsection that explains what constitutes 'a child welfare provision' in a parenting plan. It clarifies that provisions of a parenting plan that deal with matters other than the maintenance of a child are 'child welfare provisions'. The new definition avoids using terminology such as 'contact'. The definition of 'a child welfare provision' is relevant to section 63F which applies to a registered parenting plan that contains child welfare provisions.
142. Registration of parenting plans was removed by the Family Law Amendment Act 2003. These provisions therefore only relate to existing registered parenting plans.
Item 55 - Subsection 63C(5)
143. Item 55 is a consequential amendment to subsection 63C(5) which is the subsection that explains what constitutes a child maintenance provision in a parenting plan. Subsection 63C(5) refers to subsection 63C(2) which sets out the issues a parenting plan may deal with. A new subsection 63C(2) is inserted in item 13 of Schedule 1. The new subsection 63C(2) lists additional factors that can be dealt with in a parenting plan. The reference to a parenting plan dealing with maintenance of a child now appears in paragraph 63C(2)(f), not paragraph 63C(5)(c). Item 55 addresses this.
Item 56 - Subsection 63F(3)
144. Item 56 repeals and replaces the existing subsection 63F(3) which describes the effect of child welfare provisions in registered parenting plans. It does this to remove the current references to 'residence order', 'contact order' and 'specific issues order'. The section now provides that provisions relating to child welfare, which are defined in subsection 63C(4), will operate as if they were provisions of a parenting order.
145. Registration of parenting plans was removed by the Family Law Amendment Act 2003. These provisions therefore only relate to existing registered parenting plans.
Item 57 - Paragraph 65A(b)
146. Item 57 repeals and replaces the existing section 65A which is the section that describes what Division 6 of Part VII (Children) of the Act deals with. The amendment removes the references to residence, contact and specific issues orders from paragraph 65A(b). The new paragraph provides that Division 6 deals with the general obligations created by parenting orders other than child maintenance orders. This ensures that the more generic description of parenting orders operates.
Item 58 - Subsection 65G(1)
147. Item 58 repeals and replaces subsection 65G(1) which sets out when section 65G applies. Section 65G is the section that sets out the special conditions that apply when the court proposes to make a residence or specific issues order by consent, in favour of a non parent. New subsection 65G(1) changes the terminology to refer to parenting orders that deal with whom a child should live with (rather than residence orders). New subsection 65G(1A) changes the terminology to refer to parenting orders that deal with the allocation of parental responsibility or a component of parental responsibility for a child (rather than specific issues orders).
148. New subsections 65G(1) and 65G(1A) also include a reference to grandparents and other relatives such that the conditions set out in subsection 65G(2) do not apply where a court proposes to order that a child live with a grandparent or other relative or where a grandparent or other relative is allocated parental responsibility or a component of parental responsibility for a child. This change is consistent with the amendments to recognise the need to consider the benefit to the child of greater involvement of extended family members.
Item 59 - Paragraph 65K(1)(a)
149. Item 59 repeals and replaces the existing paragraph 65K(1)(a) which deals with what happens when a parenting order that includes a residence order, does not make provision in relation to the death of a parent with whom the child lives. The new paragraph 65(K)(1)(a) replaces the reference to residence orders with a reference to a parenting order that provides that the child is to live with one of the parents. This ensures that the more generic description of parenting orders operates.
Item 60 - Subsection 65K(3)
150. Item 60 repeals and replaces the existing subsection 65K(3) which provides that a surviving parent can apply for a residence order in relation to a child where the existing residence order does not make provision in relation to the death of a parent with whom the child lives. The new subsection 65K(3) removes the terminology of residence and replaces it with a reference to a parenting order that deals with whom the child is to live. This ensures that the more generic description of parenting orders operates.
Item 61 - Subdivision C of Division 6 of Part VII (heading)
151. Item 61 repeals and replaces the heading for Subdivision C of Division 6 of Part VII of the Act (Children). The new heading refers to the general obligations created by certain parenting orders. This removes the reference to residence, contact and specific issues orders and ensures that the more generic description of parenting orders operates.
Item 62 - Subsection 65M(1)
152. Item 62 repeals and replaces the existing subsection 65M(1) which deals with the general obligations created by a residence order and replaces it with a new subsection that refers to the general obligation created by a parenting order to the extent that it deals with whom the child is to live. This ensures that the more generic description of parenting orders operates.
Item 63 - Section 65N and 65P
153. Item 63 repeals and replaces the existing section 65N which sets out the general obligations created by a contact order. New section 65N applies to a parenting order to the extent that the order deals with whom the child is to spend time. This removes the terminology of 'contact' and ensures that the more generic description of parenting orders operates. Under new section 65N a person must not hinder or prevent a person spending time with the child in accordance with the parenting order, or interfere with a person and the child benefiting from spending time with each other under the order.
154. Item 63 also inserts a new section 65NA which applies to a parenting order to the extent that the order deals with whom a child communicates. This section provides that a person cannot hinder or prevent a person or child from communicating with each other in accordance with a parenting order or interfere with the communication that a person and the child are supposed to have with each other under the order. This new section is necessary to ensure that the Act sets out general obligations to cover both elements of what were previously contact orders. That is, orders relating to time spent with a child and orders relating to who the child communicates with.
155. Item 63 also repeals and replaces the existing section 65P which sets out the general obligations created by specific issues orders that confer responsibility for a child's care, welfare and development. New section 65P applies to parenting orders to the extent to which the order allocates parental responsibility. This removes the terminology of 'specific issues orders' and ensures that the more generic description of parenting orders operates. Under new section 65P, a person must not hinder a person who has been allocated parental responsibility under an order in discharging that responsibility.
Item 64 - Paragraphs 65Q(1)(a) and (b)
156. Item 64 repeals and replaces paragraphs (1)(a) and (b) in section 65Q. This section sets out when the court may issue a warrant for arrest of an alleged offender who has prevented or hindered the carrying out of a parenting order.
157. Existing paragraph 65Q(1)(a) provides that the section applies if a residence order or a contact order is in force in relation to a child. New paragraph 65Q(1)(a) replaces the references to residence and contact orders with references to orders about whom the child is to live with, spend time with or communicate with. This ensures that the more generic description of parenting orders operates.
158. Existing paragraph 65Q(1)(b) provides that the section applies if the court is satisfied that there are reasonable grounds for believing that a person has contravened sections 65M or 65N which set out the general obligations created by parenting orders that deal with whom a child spends time with, and parenting orders that allocate parental responsibility. New paragraph 65Q(1)(b) is amended to include a reference to new section 65NA inserted by item 63 of this Schedule above which set out the general obligations created by a parenting order that deals with whom a child communicates.
Item 65 - Subsection 65X(1)
159. Item 65 repeals the existing definition of a care order at subsection 65X(1) in Subdivision E of Division 6 of Part VII which is the subdivision which relates to the obligations under parenting orders relating to taking or sending children from Australia.
160. The definition is replaced with a definition of 'a parenting order to which the Subdivision applies'. The definition includes parenting orders about whom a child is to live, spend time or communicate with and parenting orders that provide for a person to have parental responsibility for a child. This amendment ensures that the more generic description of parenting orders operates.
Item 66 - Subsection 65Y(1)
161. Item 66 amends subsection 65Y(1) which imposes an obligation on a party, or a person acting on behalf of a party, not to take a child out of Australia where a residence, contact or care order is in force in relation to a child. The amendment replaces the reference to residence, contact and care orders with a reference to the new definition of 'a parenting order to which the Subdivision applies' inserted by item 65 of this Schedule. This amendment ensures that the more generic description of parenting orders operates.
Item 67 - Paragraph 65Y(2)(a)
162. Item 67 amends subsection 65Y(2)(a) which provides that there is no prohibition against taking or sending a child from Australia to outside of Australia, if it is consented to in writing. The amendment replaces the reference to 'the Part VII order' with the new definition of 'a parenting order to which this Subdivision applies' as used in subsection 65Y(1). This amendment ensures that the more generic description of parenting orders operates.
Item 68 - Paragraph 65Y(2)(b)
163. Item 68 amends paragraph 65Y(2)(b) which provides that there is no prohibition against taking or sending a child from Australia to outside of Australia, if it is done in accordance with an order of a court made under this part or under a law of a State or Territory. The amendment replaces the reference 'the Part VII order' with the new definition of 'a parenting order to which this Subdivision applies' as used in subsection 65Y(1). This amendment ensures that the more generic description of parenting orders operates.
Item 69 - Subsection 65Z(1)
164. Item 69 amends the terminology in subsection 65Z(1). This subsection prohibits the taking or sending of a child from Australia where proceedings for the making of 'a residence order, a contact order or a care order' are pending, unless an exception in subsection 65Z(2) applies. Subsection 65Z(1) is amended to replace the reference to 'a residence order, a contact order or a care order' with the new definition of 'a parenting order to which this Subdivision applies' inserted by item 65 of this Schedule. This amendment ensures that the more generic description of parenting orders operates.
Item 70 - Paragraph 65ZA(1)(a)
165. Item 70 repeals and replaces the existing paragraph 65ZA(1)(a). Section 65ZA imposes obligations on owners etc, of aircraft and vessels in relation to taking or sending a child from Australia, when a residence, contact or care order is in place. New paragraph 65ZA(1)(a) replaces the reference to 'a residence order, a contact order or a care order' with the new definition of 'a parenting order to which this Subdivision applies' inserted by item 65 of this Schedule. This amendment ensures that the more generic description of parenting orders operates.
Item 71 - Paragraph 65ZA(1)(b)
166. Item 71 amends paragraph 65ZA(1)(b). Section 65ZA imposes obligations on owners etc, of aircraft and vessels in relation to taking or sending a child from Australia, when a residence, contact or care order is in place. The amendment replaces the reference to 'Part VII' with the new definition of 'parenting order to which the Subdivision applies' inserted by item 65 of this Schedule. This amendment ensures that the more generic description of parenting orders operates.
Item 72 - Subsections 65ZA(3) and (4)
167. Item 72 amends paragraphs 65ZA(3) and (4). Section 65ZA imposes obligations on owners etc, of aircraft and vessels in relation to taking or sending a child from Australia, when a residence, contact or care order is in place. The amendment replaces the reference to 'Part VII' with the new definition of 'parenting order to which the Subdivision applies' inserted by item 65 of this Schedule. This amendment ensures that the more generic description of parenting orders operates.
Item 73 - Paragraph 65ZB(1)(a)
168. Item 73 amends paragraph 65ZB (1)(a). Section 65ZB imposes obligations on owners etc, of aircraft and vessels in relation to taking or sending a child from Australia, when a residence, contact or care order is pending. The amendment substitutes the reference to 'a residence, contact or care order' with the new definition of a 'parenting order to which the Subdivision applies' inserted by item 65 of this Schedule. This amendment ensures that the more generic description of parenting orders operates.
Item 74 - Paragraphs 67K(1)(a) to (c)
169. Item 74 repeals and replaces paragraphs 67K(1)(a) to (c). Section 67K sets out who may apply for a location order. The amendment replaces the references to residence, contact and specific issues orders in paragraphs (a) to (c) with references to parenting orders about whom a child is to live, spend time, or communicate with, and parenting orders about parental responsibility or a component of parental responsibility. This amendment ensures that the more generic description of parenting orders operates.
Item 75 - Subparagraphs 67Q(a)(ii) and (iii)
170. Item 75 repeals and replaces subparagraphs 67Q(a)(ii) and (iii). Section 67Q sets out the meaning of a recovery order which includes orders about to whom the court may order the return of a child. The existing subparagraphs refer to residence, contact and specific issues orders. The amendment replaces these references with references to parenting orders about whom a child is to live, spend time, or communicate with and parenting orders about parental responsibility or components of parental responsibility. This amendment ensures that the more generic description of parenting orders operates.
Item 76 - Subparagraphs 67Q(d)(ii) to (iv)
171. Item 76 repeals subparagraphs 67Q(d)(ii) to (iv) and replaces them with new subparagraphs 67Q(d)(ii) and (iii). Section 67Q sets out the meaning of a recovery order which includes orders requiring a returned child to be delivered to particular people. The existing subparagraphs refer to residence, contact and specific issues orders. The amendment replaces these references with references to parenting orders about whom a child is to live, spend time, or communicate with and parenting orders about parental responsibility or components of parental responsibility. This amendment ensures that the more generic description of parenting orders operates.
Item 77 - Paragraphs 67T(a) to (c)
172. Item 77 repeals and replaces paragraphs 67T(a) to (c) which set out who may apply for a recovery order. The existing paragraphs refer to residence, contact and specific issues orders. The amendment replaces these references with references to parenting orders about whom a child is to live, spend time, or communicate with and parenting orders about parental responsibility or components of parental responsibility. This amendment ensures that the more generic description of parenting orders operates.
Item 78 - Subparagraphs 68B(1)(b)(ii) and (iii)
173. Item 78 repeals subparagraphs 68B(1)(b)(ii) and (iii) which provide that the court can issue an injunction relating to the welfare of a child. The existing provisions refer to people who have residence, contact and specific issues orders. The amendment replaces these with references to parenting orders about with whom a child is to live, spend time, or communicate and parenting orders about parental responsibility or components of parental responsibility. This ensures that the more generic description of parenting orders operates.
Item 79 - Paragraph 69Z(2)(c)
174. Item 79 repeals and replaces paragraph 69Z(2)(c) which provides that a medical procedure in relation to parentage testing may not be carried out on a child under 18 without various consents. The new provision replaces references to a person with a specific issues order about parental responsibility, with a reference to a person with a parenting order under which they have parental responsibility for the child. This amendment ensures that the more generic description of parenting orders operates.
Item 80 - Paragraph 69ZA(1)(c)
175. Item 80 repeals paragraph 69ZA(1)(c) which provides that a person is not liable for civil or criminal liability in relation to the proper carrying out of a parentage testing procedure, provided there is appropriate consent. The new provision replaces references to a person with a specific issues order about parental responsibility, with a reference to a person with a parenting order under which they have parental responsibility for the child. This amendment ensures that the more generic description of parenting orders operates.
Item 81 - Subparagraph 69ZH(3)(a)(ii)
176. Item 81 repeals and replaces subparagraph 69ZH(3)(a)(ii) which provides for the extension of the operation of presumptions of parentage arising out of marriage to other parts of the Act which are confined to a child of a marriage. The new provisions replace references to residence and contact with references to with whom the child lives and spends time.
Item 82 - Subsection 70J(1)
177. Item 82 amends subsection 70J(1) which deals with the effect of registration of an overseas order on the exercise of jurisdiction by an Australian court. The amendment replaces the reference to 'a residence, contact or a care order' with a reference to 'a Subdivision C parenting order' inserted by item 47 of this Schedule. This amendment ensures that the more generic description of parenting orders operates.
Item 83 - Paragraph 70J(1)(a)
178. Item 83 repeals and replaces paragraph 70J(1)(a) which deals with the circumstances in which an Australian court can exercise jurisdiction where an overseas child order is registered under section 70G. The new provision expands the description of the type of overseas orders which, if registered, means that the court has to have the consent of the parties under the orders before it can exercise jurisdiction. The expanded description includes orders which provide for whom the child is to live, spend time and have contact with and who has rights of custody or access in relation to the child. This amendment ensures that the more generic description of parenting orders operates.
Item 84 - Subsection 70J(2)
179. Item 84 amends subsection 70J(2) which provides the limited circumstances in which the court can exercise jurisdiction and make parenting orders in relation to a child who is subject to an overseas parenting order. The amendments substitute 'a Subdivision C parenting order' (inserted by item 47 of this Schedule) for a reference to 'a residence order, a contact order or a care order'. This amendment ensures that the more generic description of parenting orders operates.
Item 85 - Paragraph 70J(2)(b)
180. Item 85 amends paragraph 70(J)(2)(b) which provides that a court may not make a Subdivision C parenting order in relation to a child who is the subject of an overseas child order unless it is satisfied that there has been a change in the circumstances of a child. The amendment replaces the reference to 'a residence order, contact order or a care order' with a reference to 'a Subdivision C parenting order' (inserted by item 47 of this Schedule). This amendment ensures that the more generic description of parenting orders operates.
Item 86 - Paragraph 70K(b)
181. Item 86 amends paragraph 70K(b) which provides that a court must cancel the registration of an overseas child order if it makes a residence order, contact order or a care order in relation to the child. The amendment replaces the reference to 'a residence order, contact order or a care order' with a reference to 'a Subdivision C parenting order' (inserted by item 47). This amendment ensures that the more generic description of parenting orders operates.
Item 87 - Subsection 70L(1) (paragraph (a) of the definition of Australian child order)
182. Item 87 amends the definition of 'Australian child order' in subsection 70L(1). Section 70L deals with the relationship between Australian orders and registered overseas child orders. The amendment replaces the reference to 'a residence order, a contact order or a care order' with a reference to 'a Subdivision C parenting order' (inserted by item 47 of this Schedule). This amendment ensures that the more generic description of parenting orders operates.
Item 88 - Subsection 70L(1) (paragraph (a) of the definition of responsible person)
183. Item 88 repeals and replaces the definition of a 'responsible person' in subsection 70L(1). Section 70L deals with the relationship between Australian orders and registered overseas child orders. The amendment replaces the reference to 'live or have contact with' under an Australian or overseas child order with references to 'live', 'spend time with' and 'have contact with'.
Item 89 - Paragraph 70M(1)(a)
184. Item 89 repeals and replaces paragraph 70M(1)(a) which deals with the circumstances under which a Registrar can send documents to an overseas jurisdiction. The amendment replaces references to residence, contact and specific issues orders with a reference to a parenting order, other than a child maintenance order. This amendment ensures that the more generic description of parenting orders operates.
Item 90 - Paragraph 70M(3)(a)
185. Item 90 repeals and replaces paragraph 70M(3)(a) which deals with who may request that documents may be transmitted overseas. The amendment adds a person with whom the child is supposed to spend time to the list. This ensures the terminology of the section is consistent with the new terminology in the Act.
Item 91 - Subsection 70N(1)
186. Item 91 repeals and replaces subsection 70N(1) which provides for regulations to be made about sending Australian orders overseas. The amendment removes the references to residence, contact and specific issues orders and replaces this with a reference to a parenting order. This amendment ensures the more generic description of parenting orders operates.
Item 92 - Paragraphs 79A(1AA)(b) and (c)
187. Item 92 amends paragraphs 79A(1AA)(b) and (c). Subsection 79A(1AA) defines a person who has 'caring responsibility' for a child for the purposes of subsection 79A(1). The amendment removes the references to residence and specific issues orders and replaces them with references to parenting orders that provide that a child is to live with a person or that a person has parental responsibility for a child. This amendment ensures the more generic description of parenting orders operates.
Item 93 - Paragraphs 90K(2)(b) and (c)
188. Item 93 repeals paragraphs 90K(2)(b) and (c). Subsection 90K(2) defines a person who has 'caring responsibility' for a child for the purposes of paragraph 90K(1)(d). The amendment removes the references to residence and specific issues orders and replaces them with references to parenting orders that provide that a child is to live with a person or that a person has parental responsibility for a child. This amendment ensures the more generic description of parenting orders operates.
Item 94 - Subparagraph 91(1)(b)(i)
189. Item 94 repeals subparagraph 91(1)(b)(i) to remove the references to residence, contact and specific issues orders in relation to the Attorney-General's power to intervene in any proceedings under this Act. This reference is replaced with a reference to a parenting order, other than a child maintenance order. This amendment ensures the more generic description of parenting orders operates.
Item 95 - Paragraphs 92A(2)(ba) and (bb)
190. Item 95 repeals paragraphs 92A(2)(ba) and (bb) which relate to persons who may intervene in proceedings. The amendment replaces the references to a person with a residence order or specific issues order with a reference to a parenting order. This amendment ensures the more generic description of parenting orders operates.
Item 96 - Paragraph 111B(1A)(c)
191. Item 96 repeals and replaces paragraph 111B(1A)(c) which deals with the Central Authority under the regulations applying for an order on behalf of another person under the Convention on the Civil Aspects of International Child Abduction. The reference to a contact order is replaced by a parenting order that deals with a person with whom the child is to spend time or communicate. This amendment ensures the more generic description of parenting orders operates.
Item 97 - Paragraph 111B(4)(b)
192. Item 97 repeals and replaces paragraph 111B(4)(b) which deals with who has rights of custody for the purpose of the Convention on the Civil Aspects of International Child Abduction. The amendment replaces the references to residence order and specific issues order with a reference to a parenting order about whom a child is to live with and who has parental responsibility for a child. This amendment ensures the more generic description of parenting orders operates.
Item 98 - Paragraph 111B(4)(d)
193. Item 98 repeals and replaces paragraph 111B(4)(d) which deals with who has rights of custody for the purpose of the Convention on the Civil Aspects of International Child Abduction. The amendment removes the reference to a contact order and replaces it with reference to a parenting order about time spent with a child or communication with a child. This amendment ensures the more generic description of parenting orders operates.
Item 99 - Subsection 111B(4) (note)
194. The note inserted by item 99 explains that for the purpose of the Convention on the Civil Aspects of International Child Abduction, a parent with a parenting plan also has rights in respect of a child. The note is amended to remove references to residence orders, specific issues orders and contact orders. The term 'parenting orders' is used instead.
Item 100 - Section 111CW
195. Item 100 repeals section 111CW which deals with how courts should deal with court proceedings for contact made in overseas jurisdictions. This reference to contact is replaced with references to with whom a child is to spend time and communicate. This is in the context of the provisions in Part XIIIAA of the Act relating to the international protection of children.
Item 101 - Paragraph 117A(1)(a)
196. Item 101 repeals paragraph 117A(1)(a) which relates to the reparation for certain losses and expenses relating to a child being taken away in contravention of a residence or contact order. This is replaced by a right to the same reparation for certain losses and expenses relating to a person who takes a child away from a person with an order providing for whom the child lives, spends time or communicates with.
Migration Act 1958<
Item 102 - Subsection 192(8)
197. Item 102 replaces the reference to a 'specific issues order' in the definition of a guardian in subsection 192(8) of the Migration Act 1958, with a reference to a person with a 'parenting order' as defined under the Family Law Act 1975. Section 192 deals with the detention of a person whose visa is liable to be cancelled. The amendment is a consequential amendment to ensure that the terminology is consistent.
Part 2 - Savings
Item 103 - Definitions
198. This item sets out the definitions of terms used in Part 2, which deals with saving regulations made under the existing Act.
Item 104 - Saving of regulations
199. This item provides for the saving of regulations made under the existing Act. It provides that even where a provision of the existing Act (specified in the table) has been repealed, regulations that were made for the purposes of that provision, and were in force immediately before the commencement of this Schedule, continue to have effect as if they had been made for the purposes of the corresponding provision of the new Act (also specified in the table).
SCHEDULE 9 - RELOCATION OF DEFINED TERMS USED IN PART VII
200. The effect of Schedule 9 is to move all of the defined terms from Part VII of the Act related to children to subsection 4(1) which is the general definition section for the whole of the Family Law Act. This will form a dictionary for all of the terms defined in Part VII. The aim is to improve the readability of the Act for users.
201. This Schedule has been developed partially in response to Recommendation 50 of the LACA Committee. Recommendation 50 was that the Family Law Act be redrafted to provide a consolidated dictionary or glossary of defined terms, to assist in easier comprehension of the Act. As a first step, the defined terms in Part VII have been consolidated. Further work on a dictionary for the entire Act would be resource intensive and could be done as part of a rewrite of the Act. Many of the provisions particularly those related to property and superannuation require consequential amendments to a large number of other Commonwealth Acts. In addition there is considerable work to be done to update Regulations and Rules.
A New Tax System (Family Assistance) Act 1999
Item 1 - amendment to definition of family law order
202. This item is a consequential amendment to the definition provision in section 3 of A New Tax System (Family Assistance) Act 1999. The definition of 'family law order' is amended by changing the reference to 'section 60D' of the Family Law Act in relation to family violence orders to 'section 4' of the Family Law Act. The amendment is necessary as the definition of a 'family violence order' has moved from section 60D, which contained definitions for Part VII about children, to the general definition provision in subsection 4(1) of the Act.
Australian Passports Act 2005
Item 2 - amendment to subsection 6(2)
203. Item 2 is a consequential amendment to the definition provision in section 6 of the Australian Passports Act 2005. Subsection 6(2) refers to 'an overseas child order within the meaning of section 70F of the Family Law Act'. The amendment removes the reference to 'section 70F'. The amendment is necessary as section 70F is repealed as a consequence of moving the definitions in the provision to subsection 4(1) which is the general definition provision for the Act.
Child Support (Assessment) Act 1989
Item 3 - amendment to definition of court order
204. This item is a consequential amendment to amend paragraph (b) of subsection 8A(7) of the Child Support (Assessment) Act 1989. The definition of court order is amended by changing the reference to 'section 60D' of the Family Law Act to 'section 4' of the Family Law Act. The amendment is necessary as the definition of a 'family violence order' has moved from section 60D, which contained definitions for Part VII about children, to the general definition provision in subsection 4(1) of that Act.
Child Support (Registration and Collection) Act 1988
Item 4 - amendment to definition of child of a marriage
205. Item 4 is a consequential amendment to remove the reference to 'Part VII' from the definition of 'child of a marriage' in section 4(1) of the Child Support (Registration and Collection) Act 1988. The amendment is necessary as the definitions previously found in Part VII of the Family Law Act 1975 have moved to subsection 4(1) which is the general definition provision in the Act.
Item 5 - amendment to definition of step-parent
206. Item 5 is a consequential amendment to remove the reference to 'Part VII' from the definition of 'step-parent' in section 4(1) of the Child Support (Registration and Collection) Act 1988. The amendment is necessary as the definitions previously found in Part VII of the Family Law Act 1975 have moved to subsection 4(1) which is the general definition provision in the Act.
Family Law Act 1975
Item 6 - insert to subsection 4(1)
207. Item 6 moves the definition of 'adopted' in relation to a child from section 60D, which was where the defined terms for Part VII were, to subsection 4(1) which is the main definition provision in the Act.
Item 7 - insert to subsection 4(1)
208. Item 7 moves to the definition provision in subsection 4(1) the definition of 'alleged contravention', which is currently in Subdivision D of Division 6 of Part VII. That definition is relevant to provisions dealing with how the court deals with people who have been arrested for contravention of a contact order. The definition in this case is limited to this subdivision due to the specific reference to the arrested person which would not be relevant in other parts of the Act.
Item 8 - insert to subsection 4(1)
209. Item 8 moves to the definition provision in subsection 4(1) the definition of 'alleged offender', which is currently in Subdivision D of Division 6 of Part VII. That definition is relevant to provisions dealing with how the court deals with people who have been arrested for contravention of a contact order. The definition in this case is limited to this subdivision due to the specific reference to the arrested person which would not be relevant in other parts of the Act.
Item 9 - insert to subsection 4(1)
210. Item 9 moves to the definition provision in subsection 4(1) the definition of 'applied provisions', which is currently in Division 13A of Part VII. That division deals with applications related to contraventions of orders affecting children. There are consequential changes to the references in the provisions due to the changes to the compliance regime described in Schedule 2.
Item 10 - insert to subsection 4(1)
211. Item 10 moves to the definition provision in subsection 4(1) the definition of 'appropriate authority', which is currently in section 67H which is the interpretation section in Subdivision C of Division 8 of Part VII and relates to the location and recovery of children. The definition is limited to Part VII as it has particular significance to information about the location of children which would not be relevant to other parts of the Act.
Item 11 - insert to subsection 4(1)
212. Item 11 moves to the definition provision in subsection 4(1) the definition of 'arresting person', which is currently in Subdivision D of Division 6 of Part VII. The definition is relevant to applications related to contraventions of orders affecting children however the definition also has a generic application.
Item 12 - insert to subsection 4(1)
213. Item 12 moves to the definition provision in subsection 4(1) the definition of 'artificial conception procedure', which is currently in section 60D, which was where the defined terms for Part VII used to be.
Item 13 - insert to subsection 4(1)
214. Item 13 moves to the definition provision in subsection 4(1) the definition of 'birth', which is currently in section 60D, which was where the defined terms for Part VII used to be. It makes it clear that a birth includes a still birth. The definition will have generic application throughout the Act. The term is relevant for provisions about the child maintenance that a mother can claim for child birth expenses. The only other reference to 'birth' in the Act is in section 102 about what can be used as proof of birth which refers to a certificate or entry of birth.
Item 14 - insert to subsection 4(1)
215. Item 14 moves to the definition provision in subsection 4(1) the definition of 'captain', which is currently in section 65X which is the interpretation provision for Subdivision E of Part VII which is about obligations under parenting orders relating to the taking or sending of a child from Australia. Certain obligations are placed on a captain of an aircraft or ship who is appropriately served to prevent the removal of a child from Australia.
Item 15 - insert to subsection 4(1)
216. Item 15 moves to the definition provision in subsection 4(1) the definition of 'child', which is currently in section 60D, which was where the defined terms for Part VII used to be. It makes it clear that a child includes both an adopted and a still born child. The term has generic application.
Item 16 - insert to subsection 4(1)
217. Item 16 moves to the definition provision in subsection 4(1) the definition of 'childbirth maintenance period', which is currently in section 60D, which was where the defined terms for Part VII used to be. The term has generic application. The normal period that a father will be obliged to pay maintenance in relation to the birth of a child is 2 months prior to the due date of birth but may be extended up to 3 months if the mother is advised by a doctor to stop working for health reasons related to the pregnancy.
Item 17 - insert to subsection 4(1)
218. Item 17 moves to the definition provision in subsection 4(1) the definition of 'child maintenance order', which is currently in section 60D, which was where the defined terms for Part VII used to be. The term has generic application. It refers the user to subsection 64B(5) in Division 5 which sets out what parenting orders are.
Item 18 - insert to subsection 4(1)
219. Item 18 moves to the definition provision in subsection 4(1) the definition of 'child maintenance provisions', which is currently in section 60D, which was where the defined terms for Part VII used to be. The term has generic application. It refers the user to subsection 63C(5) in Division 4 which sets out what parenting plans are.
Item 19 - insert to subsection 4(1)
220. Item 19 moves to the definition provision in subsection 4(1) the definition of 'child welfare law', which is currently in section 60D, which was where the defined terms for Part VII used to be. The term has generic application.
Item 20 - insert to subsection 4(1)
221. Item 20 moves to the definition provision in subsection 4(1) the definition of 'child welfare officer', which is currently in section 60D, which was where the defined terms for Part VII used to be. The term has generic application.
Item 21 - insert to subsection 4(1)
222. Item 21 moves to the definition provision in subsection 4(1) the definition of 'child welfare provisions', which is currently in section 60D, which was where the defined terms for Part VII used to be. The definition refers the user to subsection 63C(4) which specifies certain topics dealt with in parenting plans as child welfare provisions.
Item 22 - insert to subsection 4(1)
223. Item 22 moves to the definition provision in subsection 4(1) the definition of 'Commonwealth information order', which is currently in section 67H. Section 67H is the interpretation provision of Subdivision C of Division 8 of Part VII about the location and recovery of children. It refers the user to subsection 67J(2) which makes clear that it is an order to the Secretary of a Department to provide the Registry Manager of the court with information about the location of a child which is contained in the agency records.
Item 23 - insert to subsection 4(1)
224. Item 23 moves to the definition provision in subsection 4(1) the definition of 'community service order', which is currently in section 70NB in Subdivision 13A dealing with compliance with parenting orders. Community service orders are one of the types of orders that the court can make for contraventions of orders relating to children. It refers the user to subsection 70NFC(3). This is a consequential amendment to the numbering due to changes to the compliance regime in Schedule 2. The provision sets out the types of orders that might be classified as community service orders.
Item 24 - insert to subsection 4(1)
225. Item 24 moves to the definition provision in subsection 4(1) the definition of 'contravened', which is currently in section 70NB in Subdivision 13A dealing with compliance with parenting orders. It refers the user to section 70NAC. This is a consequential amendment to the numbering due to changes to the compliance regime in Schedule 2. The provision makes clear that a person has contravened an order if they intentionally fail to comply or make no reasonable attempt to comply with an order or if they prevent compliance by a person bound by an order, or aid or abets a contravention by another person bound by the order.
Item 25- insert to subsection 4(1)
226. Item 25 moves to the definition provision in subsection 4(1) the existing definition of 'de facto relationship' which is currently in section 60D, which was where the defined terms for Part VII used to be. The term has generic application throughout the Act.
Item 26- insert to subsection 4(1)
227. Item 26 moves to the definition provision in subsection 4(1) the existing definition of 'Department' which is currently in section 67H, which is the interpretation provision of Subdivision C of Division 8 about the location and recovery of children. The definition is limited in application to the provisions about these orders.
Item 27- insert to subsection 4(1)
228. Item 27 moves to the definition provision in subsection 4(1) the existing definition of 'education' which is currently in section 60D, which was where the defined terms for Part VII used to be. The definition will have generic application. It makes it clear that 'education', wherever used in the Act, can include apprenticeship and vocational education training. This is relevant to provisions about child maintenance in Part VII about children and also to provisions about property settlements in Part VIII of the Act.
Item 28- insert to subsection 4(1)
229. Item 28 moves to the definition provision in subsection 4(1) the existing definition of 'excluded order' which is currently in section 70F which is the interpretation provision for Subdivision C of Division 13. That subdivision concerns the registration of overseas orders.
Item 29 - insert to subsection 4(1)
230. Item 29 moves to the definition provision in subsection 4(1) the definition of 'family violence order', which is currently in section 60D, which was where the defined terms for Part VII used to be.
Item 30 - insert to subsection 4(1)
231. Item 30 moves to the definition provision in subsection 4(1) the definition of 'guardian', which is currently in section 60D, which was where the defined terms for Part VII used to be.
Item 31 - insert to subsection 4(1)
232. Item 31 moves to the definition provision in subsection 4(1) the definition of 'information about the child's location', which is currently in section 67H. This is the interpretation provision of Subdivision C of Division 8 about the location and recovery of children.
Item 32 - insert to subsection 4(1)
233. Item 32 moves to the definition provision in subsection 4(1) the definition of 'interests', which is currently in section 60D, which was where the defined terms for Part VII used to be.
Item 33 - insert to subsection 4(1)
234. Item 33 moves to the definition provision in subsection 4(1) the definition of 'location order', which is currently in section 67H. This is the interpretation provision of Subdivision C of Division 8 about the location and recovery of children. The definition refers to subsection 67J(1) which sets out that a 'location order' relates to orders by the court for information about a child's location to be provided to the Registry Manager.
Item 34 - insert to subsection 4(1)
235. Item 34 moves to the definition provision in subsection 4(1) the definition of 'medical expenses', which is currently in section 60D, which was where the defined terms for Part VII used to be.
Item 35 - insert to subsection 4(1)
236. Item 35 moves to the definition provision in subsection 4(1) the definition of 'medical practitioner', which is currently in section 60D, which was where the defined terms for Part VII used to be.
Item 36 - insert to subsection 4(1)
237. Item 36 moves to the definition provision in subsection 4(1) the definition of 'member of the family' for the purposes of the definition of 'step-parent', which is currently in section 60D, which was where the defined terms for Part VII used to be. The details of the definition are at subsection 4(1AB). That provision sets out in detail who is a family member.
Item 37 - insert to subsection 4(1)
238. Item 37 moves to the definition provision in subsection 4(1) the definition of 'order under this Act affecting children', which is currently in section 70NB which contains the definitions relevant to contravention applications.
Item 38 - insert to subsection 4(1)
239. Item 38 moves to the definition provision in subsection 4(1) the definition of 'parent', which is currently in section 60D, which was where the defined terms for Part VII used to be. The definition is restricted to Part VII as it specifically relates to references in relation to a child who is adopted.
Item 39 - insert to subsection 4(1)
240. Item 39 moves to the definition provision in subsection 4(1) the definition of 'parentage testing order', which is currently in section 60D, which was where the defined terms for Part VII used to be.
Item 40 - insert to subsection 4(1)
241. Item 40 moves to the definition provision in subsection 4(1) the definition of 'parentage testing procedure', which is currently in section 60D, which was where the defined terms for Part VII used to be.
Item 41 - insert to subsection 4(1)
242. Item 41 moves to the definition provision in subsection 4(1) the definition of 'parental responsibility', which is currently in section 60D, which was where the defined terms for Part VII used to be.
Item 42 - insert to subsection 4(1)
243. Item 42 moves to the definition provision in subsection 4(1) the definition of 'parenting order', which is currently in section 60D, which was where the defined terms for Part VII used to be.
Item 43 - insert to subsection 4(1)
244. Item 43 moves to the definition provision in subsection 4(1) the definition of 'pending'.
Item 44 - insert to subsection 4(1)
245. Item 44 moves to the definition provision in subsection 4(1) the definition of 'prescribed adopting parent', which is currently in section 60D, which was where the defined terms for Part VII used to be.
Item 45 - insert to subsection 4(1)
246. Item 45 moves to the definition provision in subsection 4(1) the definition of 'prescribed child welfare authority,' which is currently in section 60D, which was where the defined terms for Part VII used to be. The definition is relevant for Part VII in relation to children and in Part IX in relation to who can intervene in proceedings where there are issues of child abuse.
Item 46- insert to subsection 4(1)
247. Item 46 moves to the definition provision in subsection 4(1) the definition of 'primary order', which is currently in section 70NB which contains the definitions for Division 13A about contravention applications. These provisions are substantially renumbered and reordered by Schedule 2.
Item 47 - insert to subsection 4(1)
248. Item 47 moves to the definition provision in subsection 4(1) the definition of 'principal officer', which is currently in section 67H, which is the interpretation provision of Subdivision C of Division 8 about the location and recovery of children. These officers are prescribed by Regulations.
Item 48 - insert to subsection 4(1)
249. Item 48 moves to the definition provision in subsection 4(1) the definition of 'professional ethics', which is currently in section 60D, which was where the defined terms for Part VII used to be. The definition is generic and will apply to other uses of this term within the Act such as in subsections 111CV(2) and (3) in Division 4 of Part XIIIAA, which concerns the international protection of children.
Item 49 - insert to subsection 4(1)
250. Item 49 moves to the definition provision in subsection 4(1) the definition of 'reasonable excuse for contravening', which is currently in Division 13A about contravention applications.
Item 50 - insert to subsection 4(1)
251. Item 50 moves to the definition provision in subsection 4(1) the definition of 'recovery order', which is currently in section 67H. This is the interpretation provision of Subdivision C of Division 8 about the location and recovery of children.
Item 51 - insert to subsection 4(1)
252. Item 51 moves to the definition provision in subsection 4(1) the definition of 'Registry Manager', which is currently in section 67H. This is the interpretation provision of Subdivision C of Division 8 about the location and recovery of children.
Item 52 - insert to subsection 4(1)
253. Item 52 moves to the definition provision in subsection 4(1) the definition of 'State', which is currently in section 70B. This is the interpretation provision for Subdivision B of Division 13 of Part VII which is about the registration of State and Territory orders about children.
Item 53 - insert to subsection 4(1)
254. Item 53 moves to the definition provision in subsection 4(1) the definition of 'step-parent' which is currently in section 60D, which was where the defined terms for Part VII used to be.
Item 54 - insertion of new subsection 4(1AB) and subsection 4(1AC)
255. Item 54 moves from subsection 60D(2) and (3) the definition of 'member of family and relative' to the general definition provision subsection 4(1). These definitions are relevant for the purpose of the definition of 'step-parent' and the definition of 'family violence' which has also moved from section 60D, the definition section in Part VII. The description of who is a member of a family or relative has not changed.
Item 55 - repeal of section 60D
256. Item 55 repeals section 60D of Part VII. This is consequential to moving all of the definitions in Part VII into the general definition section in subsection 4(1) of the Act.
Item 56 - amendment to subsection 65R(2)
257. This item omits the reference to 'subsection (1)' in section 65R as a consequence of the repeal of subsection 65R(2) by item 57. There will now be only one subsection in section 65R. Subsection 65R(2) is the interpretation provision of Subdivision D which deals with people who have been arrested in Division 6 related to parenting orders. It is repealed as a consequence of moving the definitions in the interpretation section to the general definition provision in subsection 4(1) to assist in simplifying comprehensibility of the Act.
Item 57 - repeal of 65R(2)
258. This item repeals subsection 65R(2) which is the interpretation provision of Subdivision D of Division 6 of Part VII which deals with people who have been arrested for breach of parenting orders. It is repealed as a consequence of moving the definitions in the interpretation section to the general definition provision in subsection 4(1) to assist in simplifying comprehensibility of the Act.
Item 58 - repeal of 67H
259. This item repeals section 67H which is the interpretation provision for Subdivision C of Division 8 of Part VII. That subdivision deals with the location and recovery of children. The repeal of this section is necessary as a consequence of moving the definitions currently in the provision to subsection 4(1), the general definition provision in the Act.
Item 59 - repeal of 70B
260. Item 59 repeals section 70B which is the interpretation provision for Division 13A of Part VII. That division deals with the consequences of failure to comply with orders, and other obligations, that affect children. The repeal of this section is necessary as a consequence of moving the definitions currently in the provision to subsection 4(1), the general definition provision in the Act.
Item 60 - repeal of 70F
261. Item 60 repeals section 70F which is the interpretation provision for Subdivision C of Division 13 of Part VII. That subdivision relates to the registration of overseas orders. The item is repealed as a consequence of moving the definitions in the provision to subsection 4(1), the general definition provision in the Act.
Item 61 - amendment to definition of Australian child order
262. Item 61 omits the reference to 'section 70B' from the second paragraph of the definition of 'Australian child order' which is in section 70L. The definition of 'Australian child order' currently includes a reference to 'a State child order as defined in section 70B'. This amendment is a consequence of the definition of 'State child order' in section 70B being moved to the general definition provision, subsection 4(1) in the Act. Section 70L is about the relationship between Australian orders and registered overseas orders.
Item 62 - amendment to subsection 92(1A)
263. Item 62 removes the reference to the definitions in Part VII from subsection 92(1A) in Part IX of the Act. That section provides that a person who has been required to submit a test for a parentage testing procedure can intervene in the proceedings for principal relief. The amendment is a consequence of moving the definitions in Part VII to subsection 4(1), the general definition provision in the Act.
Item 63 - amendment to paragraph 109A(1)(a)
264. Item 63 removes the reference to the definition of 'order under this Act affecting children' in Division 13A of Part VII from paragraph 109A(1)(a) of the Act. Division 13A of Part VII provides for the consequences that arise from contravention of orders affecting children. The removal is a consequence of the definitions about contravention applications in Division 13A being moved to the general definition section in subsection 4(1) of the Act. Section 109 relates to the rules of court relating to enforcement in Part III which is about the enforcement of decrees.
Item 64 - amendment to subsection 112AP(9)
265. Item 64 removes the reference to the definition of 'order under this Act affecting children' in Division 13A of Part VII from subsection 112AP(9) of the Act. Division 13A of Part VII provides for the consequences that arise from contravention of orders affecting children. This is a consequence of the definitions about contravention applications in Division 13A being moved to the general definition section in subsection 4(1) of the Act. This cross reference is in a definition in Part XIIIB of the Act about contempt of court.
Part 2 - Savings
Item 65 - Definitions
266. This item sets out the definitions of terms used in Part 2, which deals with saving regulations made under the existing Act.
Item 66 - Saving of regulations
267. This item provides for the saving of regulations made under the existing Act. It provides that even where a provision of the existing Act (specified in the table) has been repealed, regulations that were made for the purposes of that provision, and were in force immediately before the commencement of this Schedule, continue to have effect as if they had been made for the purposes of the corresponding provision of the new Act (also specified in the table).
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