MEMBERS OF THE COMMITTEE
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
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]
Senator Helen Kroger, LP, VIC
Senator John Williams, NATS, NSW
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: email@example.com
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
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
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
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:
(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.
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
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)'.
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.
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.
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.
3.180 The committee recommends, in relation to the commencement date of Schedule 1 of the Bill, that column 2 of subclause 2(1) of the Bill be amended to delete reference to 'A single day to be fixed by Proclamation' and to provide that Schedule 1 will commence on the day after the end of the period of three months beginning on the day of Royal Assent.
3.186 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.
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'.
3.188 Subject to the above recommendations, the committee recommends that the Senate pass the Bill.
Secretary of the Shared Parenting Council of Australia saidRemoving 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.