Senate

Explanatory Memorandum

(Circulated by authority of the Attorney General, Senator the Hon George Brandis QC)

SCHEDULE 3-FAMILY LAW

GENERAL OUTLINE

138. Schedule 3 will make minor, technical amendments to improve the operation of the Family Law Act 1975. The amendments will remove obsolete references and ensure the use of consistent language.

Family Law Act 1975

Item 1: Subsection 10C(2) and 10G(2)

139. Section 10C of the Family Law Act 1975 defines, and sets out matters that are relevant to the definition of, the phrase 'family counsellor'. Subsection 10C(2) requires the Minister to publish a list of organisations designated for the purposes of paragraph 10C(1)(b) of the definition of family counsellor.

140. This amendment removes the words 'at least annually' from subsection 10C(2). The list of organisations designated for the purposes of the definition of family counsellor in the Act is continuously available through publication on the internet so a requirement to publish that list annually is redundant.

141. Section 10G of the Family Law Act defines, and sets out matters that are relevant to the definition of, the phrase 'family dispute resolution practitioner'. Subsection 10G(2) requires the Minister to publish a list of organisations designated for the purposes of paragraph 10G(1)(b) of the definition of family dispute resolution practitioner.

142. This amendment will remove the words 'at least annually' from subsection 10G(2). The list of organisations designated for the purposes of the definition of family dispute resolution practitioner in the Act is continuously available through publication on the internet so a requirement to publish that list annually is redundant. This amendment will also ensure consistency with subsection 10C(2).

Item 2: Subsection 65F(4)

143. Section 65F of the Family Law Act 1975 establishes the general requirements relating to counselling that must be satisfied before a court can make a parenting order. The section also sets out the exceptions to that general rule.

144. Subsection 65F(4) will be repealed because it contains a definition of the term 'proceedings for a parenting order', which no longer exists in section 65F, as a result of the repeal of subsection 65F(1) in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006.

Item 3: Paragraph 65ZB(3)(b)

145. Section 65ZB prohibits the departure, to a destination outside Australia, of children in relation to whom certain parenting orders are pending. The section also identifies exceptions to, and the penalty for breaching, that prohibition.

146. This amendment will add the phrase 'the child leaves' at the beginning of paragraph 65ZB(3)(b). This amendment will correct an error in the existing wording of the provision and ensures consistency with the mirror requirement contained in paragraph 65ZA(3)(b).

Item 4: Paragraph 68R(5)(b)

147. Section 68R of the Family Law Act 1975 deals with various aspects relating to the ability of a court making or varying a family violence order to deal with an existing order, injunction or arrangement under the Family Law Act in certain circumstances.

148. This amendment removes the phrase 'contact [with both parents]' from paragraph 68R(5)(b) and replaces it with the phrase 'spending time [with both parents]' to ensure that the language of this paragraph is consistent with the language used elsewhere in section 68R.

Item 5: After paragraph 121(9)(a)

149. Section 121 of the Family Law Act 1975 restricts the publication of any accounts of any proceedings, or parts of any proceedings, under the Act that identify the parties or others involved in the case. The restriction applies to publication, or other dissemination, to the public or a section of the public, and can apply to disclosures online as well as through the media. Breaches of section 121 are offences punishable by imprisonment of up to one year.

150. Subsection 121(9) sets out the circumstances in which the general prohibition does not apply. The fact that the publication or dissemination of certain information is permitted by the explicit inclusion of an exception in section 121 will not make the release of information lawful if the provision of that information is prohibited by other legislation.

151. The Attorney-General's Department engaged Professor Richard Chisholm (former Family Court Judge) to chair a taskforce to report on how experts' reports can be better shared between the federal family law system and the State and Territory child protection systems. Professor Chisholm's report identified the existence of differing views about whether section 121 operates to prohibit the provision of family court reports to agencies within the State and Territory child protection systems. Because of these differing views some child welfare agencies currently seek explicit court orders to obtain court documents, such as experts' reports. This is despite the apparent strength of the contrary view that the release of such information to a State or Territory child welfare authority is not publication or dissemination to the public or to a section of the public. The report recommended that the Commonwealth review the wording of section 121 and consider removing this doubt to state explicitly that it does not apply to the provision of information to the child protection system.

152. This amendment will clarify the exceptions to section 121(9) by explicitly permitting the communication of any pleading, transcript of evidence or other document to a prescribed State or Territory child welfare authority. The purpose of explicitly authorising the release of this information is to ensure that there is appropriate information sharing between the family law and child protection systems to ensure the best possible outcomes for children. The amendment will ensure that child welfare authorities have access to any relevant family law material and enhance interactions between the family law and child protection systems.

Item 6: Application of paragraph 121(9)(aa)

153. This amendment will remove any doubt that new paragraph 121(9)(aa) applies in relation to proceedings occurring before, on or after the commencement date of that provision.