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Senate committee reports back on Family Law Bill

Senate committee reports back on Family Law Bill

MEMBERS OF THE COMMITTEE

Members
Senator Patricia Crossin, Chair, ALP, NT
Senator Gary Humphries, Deputy Chair, LP, ACT   
Senator Sue Boyce, LP, QLD  
Senator Mark Furner, ALP, QLD
Senator Louise Pratt, ALP, WA
Senator Penny Wright, AG, SA  
Substitute Member
Senator  Rachel  Siewert,  AG,  WA  replaced  Senator  Penny  Wright,  AG,  SA  for  the committee's  inquiry  into  the  Family  Law  Legislation  Amendment  (Family  Violence and Other Measures) Bill 2011 [Provisions]
Participating Members
Senator Helen Kroger, LP, VIC
Senator John Williams, NATS, NSW
 
Secretariat
Ms Julie Dennett  Committee Secretary
Ms Monika Sheppard  Acting Principal Research Officer
Ms Margaret Cahill  Research Officer
Ms Aleshia Bailey  Research Officer
Ms Hana Jones  Administrative Officer
Ms Hannah Dibley  Administrative Officer
Mr Dylan Harrington  Administrative Officer
 
Suite S1.61       Telephone:  (02) 6277 3560
Parliament House    Fax:     (02) 6277 5794
CANBERRA ACT 2600  Email: legcon.sen@aph.gov.au

The Shared Parenting Council did extremely well with its submission and received 3 mentions out of 92 pages of report.

TABLE OF CONTENTS
 
CHAPTER 1 .. 1
Introduction .. 1
Purpose of the Bill .. 1
Conduct of the inquiry .. 3
Acknowledgement .. 3
Scope of the report .. 3
Notes on references .. 3

CHAPTER 2 .. 5
Overview of the Bill .. 5
Key provisions relating to family violence .. 5
Application provision .. 14
Financial implications .15

CHAPTER 3 .. 17
Key issues .. 17
Addition of the Convention on the Rights of the Child as a new object of  Part VII of the Act .. 18
Primary considerations in determining a child's best interests .. 19
Additional consideration of the 'friendly parent' provisions .. 23
Additional consideration of family violence orders .. 26
New definitions of 'abuse' and 'family violence' .. 29
Provision of information to the Family Court of Australia by third parties .. 39
Obligation of advisers to prioritise the safety of children .. 42
Judicial duty to take prompt action in relation to allegations .. 43
Judicial duty to inquire into abuse, neglect and family violence .. 44
Repeal of the mandatory costs orders provision .. 48
Retrospective effect of the application provision in item 45 of Schedule 1 .. 51
Resourcing implications for the Family Court of Australia .. 54
Equal shared parental responsibility .. 55
Need for a public education campaign about the Bill's proposed measures .. 57
Committee view ..58

RECOMMENDATIONS
..67

ADDITIONAL COMMENTS BY  COALITION SENATORS .. 69
Repeal of the facilitation aspect of the 'friendly parent' provision .. 69
New definition of 'abuse' .. 69
New definition of 'family violence' .. 70
Repeal of the mandatory costs orders provision .. 70
Application provision .. 71

ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS .. 73
Introduction .. 73
Removal of equal shared parental responsibility (ESPR) .. 73
Considerations in determining a child's best interests .. 76
Exposure to family violence in the definition of 'family violence' .. 77
Risk assessment framework .. 78
Conclusion .. 78

APPENDIX 1 .. 81

SUBMISSIONS RECEIVED .. 81

ADDITIONAL INFORMATION RECEIVED .. 88

APPENDIX 2 .. 91
WITNESSES WHO APPEARED BEFORE THE COMMITTEE .. 91

CHAPTER 2

  Overview of the Bill

2.1  This chapter describes some of the main provisions in the Bill.  

2.2  The  Bill  comprises  two  schedules  of  amendments.  Part  1  of  Schedule  1  sets out amendments  relating to family violence  in the Act. Part 1  of  Schedule 2  sets out all other amendments to the Act and amendments to the Bankruptcy Act 1966. Part 2 of both schedules contain application and transitional provisions.  

2.3  The  EM  and  the  Second  Reading  Speech  clearly  indicate  that  Part  1  of Schedule  1  contains  the  key  provisions  of  the  Bill.

For  this  reason,  and  due  to  the nature  of  the  evidence  received  throughout  the  inquiry,  Chapter  2  focuses  on  those provisions, and the application provision proposed in item 45 of Schedule 1.

Key provisions relating to family violence
2.4  The primary objective of the Bill is to 'positively address family violence and child  abuse  in  the  family  law  system'.

To  achieve  this  objective,  the  Bill  proposes five categories of key amendments and each of these is discussed below.
 
Prioritising the best interests of children in parenting matters
Convention on the Rights of the Child


2.5  Current section 60B of the Act sets out the objects and underlying principles of  Part  VII  of  the  Act,  which  deals  with  child-related  matters.  The  overarching objective  is  to  ensure  that  the  'best  interests  of  children'  are  met  when  making parenting orders and in applying other provisions which involve court proceedings.  

2.6  Proposed new subsection 60B(4) adds as an additional object the Convention on  the  Rights  of  the  Child  (Convention)  'done'  at  New  York  on  20  November  1989.  This Convention was ratified by Australia on 17 December 1990.

2.7  The EM states:
The  purpose  of  this  object  is  to  confirm,  in  cases  of  ambiguity,  the obligation on decision makers to interpret Part VII of the Act, to the extent

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its  language  permits,  consistently  with  Australia's  obligations  under  the Convention.  The  Convention  may  be  considered  as  an  interpretive  aid  to Part VII of the Act. To the extent that the Act departs from the Convention, the Act would prevail. This provision is not equivalent to incorporating the Convention into domestic law.

Primary considerations in determining a child's best interests

2.8  Current section 60CC sets out how a court is to determine what is in a child's best  interests.  The  court  must  invoke  a  two-tiered  approach:  two  primary considerations  specified  in  subsection  60CC(2);  and  the  additional  considerations  listed in subsection 60CC(3).

2.9  Subsection 60CC(2) reads:
Primary considerations  
(2) The primary considerations are:  
(a) the benefit to the child of having a meaningful relationship with both
of the child's parents; and  
(b)  the  need  to  protect  the  child  from  physical  or  psychological  harm from  being  subjected  to,  or  exposed  to,  abuse,  neglect  or  family violence.  

Note:  Making  these  considerations  the  primary  ones  is  consistent  with  the objects of this Part set out in paragraphs 60B(1)(a) and (b).  

2.10  Proposed new subsection 60CC(2A) (item 17) inserts the following provision into the Act:
(2A)  If there is any inconsistency in  applying the considerations set out in subsection  (2),  the  court  is  to  give  greater  weight  to  the  consideration  set out in paragraph (2)(b).

2.11  The EM states that, where child safety is a concern:
[T]his new provision will provide the courts with clear legislative guidance that protecting the child from harm is the priority consideration.
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Additional consideration    repeal of the 'friendly parent' provisions

2.12  One of the additional considerations for determining what is in a child's best interests  (subsection  60CC(3))  are  the  so-called  'friendly  parent'  provisions.  The  'friendly  parent'  provisions  are  paragraph  60CC(3)©,  subsection  60CC(4),  and
subsection 60CC(4A).  

RECOMMENDATIONS

Recommendation 1

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

513 views (27 KB)




Recommendation 2
3.164  The committee recommends that proposed new paragraph 60CC(3)( c) in  item  18  of  Schedule  1  of  the  Bill  be  amended  to  require  the  Family  Court  of Australia  to  give  consideration  to  the  reason(s)  why  one  parent  might  not  have facilitated a relationship with the other parent in accordance with that provision, including due to risk of harm to a child.

Recommendation 3
3.165  The committee recommends that proposed new paragraph 60CC(3)(k) in item 19 of Schedule 1 of the Bill be amended to read:
(k)  any  relevant  inferences  that  can  be  drawn  from  any  family  violence order that applies, or has applied, to the child or a member of the child's family, taking into account the nature of the order, the circumstances in which it was made, any evidence admitted and any findings made by the court that made the order, and any other relevant matter.  




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

Recommendation 5

3.180  The committee recommends, in relation to the commencement date of Schedule 1 of the Bill, that column 2 of subclause 2(1) of the Bill be amended to delete reference to 'A single day to be fixed by Proclamation' and to provide that Schedule 1 will commence on the day after the end of the period of three months beginning on the day of Royal Assent.
 
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Recommendation 6
3.186  The  committee  recommends  that  the  Attorney-General's  Department, in  conjunction  with  the  family  law  courts  and  relevant  professional organisations,  institute  an  education  campaign,  to  commence  no  less  than  two months  prior  to  the  expiration  of  any  lead  time,  and  to  cover  the  critical amendments made by the Bill, including the Schedule 1 commencement date.

Recommendation 7
3.187  The committee recommends that the heading in item 45 of Schedule 1 of the Bill be amended to read 'Amendments that apply to proceedings instituted on or before commencement'.

Recommendation 8
3.188  Subject  to  the  above  recommendations,  the  committee  recommends that the Senate pass the Bill.
Secretary of the Shared Parenting Council of Australia said
Removing the existing friendly parent provisions s60CC and replacing them with another loose definition "the extent to which each of the childs parents has taken, or failed to take, the opportunity…" will significantly change the landscape. The drafters that created this can of worms have clearly not fully consulted practitioners at the coal face. This  amendment  has  the  capacity  to  fundamentally eliminate all the friendly parent provisions and introduces  subjective  material that  may impact on appropriate deliberations by the Judiciary.

6CC (c ) the extent to which each of the child's parents has taken, or failed to take, the opportunity: is a set of loose weasel words that leads to animosity and confusion and is inadequate and replaces the extremely successful wording in (c ) the willingness and ability of each of the childs parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

How does this current Provision Paragraph 60CC (3) (c ) Family Law Act which is referred to as the "Friendly Parent" provisions.

(c )  the  willingness  and  ability  of  each  of  the  childs  parents  to  facilitate,  and  encourage,  a close and continuing relationship between the child and the other parent;

Now become this:

(c )  the extent to which each of the childs parents has taken, or  failed to take, the opportunity:
(i)  to participate in making decisions about major long-term issues in relation to the child; and
(ii)  to spend time with the child; and
(iii)  to communicate with the child;
(ca)  the extent to which each of the childs parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child;

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child is complex and unworkable as one angry parent will ensure that there is little if ever any opportunity for the other parent. 60CC (k) entices parents to obtain ADVO or AVOs and should be removed completely. The brunt of recommendation two and three by the committee will be born by the Magistrates courts with disputes around AVO's and a confirmed new approach the more AVO's the better when you go to family courts is the clear message here in recommendation three.

I suppose a parent could mount an argument under amendment 2 and that proposed amendment requires the Family Court of Australia (They seem to have forgotten about the Family Law Courts that involve the Federal Magistrates) to give consideration to the reason(s) why one parent might not have facilitated a relationship with the other parent. So if you have one parent being obstructive in relation to contact and there is no family violence there could be additional arguments made under the provisions that would support contact arrangements.

The Bill is supposed to reduce incidents of family violence but there are few lean pickings, if any at all, in this Bill that support the notion of reducing actual family violence. The Act is becoming far to complex in is entirety and perhaps now is a good time to have a major overhaul.
Attachment
report on the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

 
 
Edited

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