FAMILY LAW AMENDMENTBILL
(SHARED PARENTALRESPONSIBILITY) BILL 2005
GENERALOUTLINE
This Billamends the Family Law Act 1975 (the Act) to implement asignificant number of the recommendations of the report of theHouse of Representatives Standing Committee on Family and CommunityAffairs (the FCAC) inquiry into child custody arrangements in theevent of family separation. The report, entitled EveryPicture Tells a Story, was released on 29December 2003 (the FCAC Report). The Bill also implementsmost of the recommendations made by the House of RepresentativesStanding Committee on Legal and Constitutional Affairs(theLACACommittee) in its report on the exposure draftof the Bill (theLACAReport).
The amendmentsare part of the Government’s bold new reform agenda in familylaw. The legislation underpins the package of measuresannounced in the 2005 Budget. The cost of the package isestimated at $397 million over four years. These initiativesrepresent a generational change in family law and aim to bringabout a cultural shift in how family separation is managed: awayfrom litigation and towards cooperative parenting.
Schedule1
The amendmentsin Schedule 1 recognise the need for a cooperative approach toparenting. The amendments promote the object of ensuring thatchildren have a right to have a meaningful relationship with boththeir parents and that parents continue to share responsibility fortheir children after they separate. The amendments alsoreinforce the primary importance of the object of ensuring thatchildren live in an environment where they are safe from violenceor abuse.
The amendments in Schedule 1 also advance theGovernment’s long standing policy of encouraging people totake responsibility for resolving disputes themselves, in a nonadversarial manner.
Schedule2
Schedule 2contains a range of amendments to strengthen the existingenforcement regime in the Act. Breaches of court orders are amajor source of conflict and distress to all partiesinvolved. The amendments provide the courts with a greaterrange of options to better enforce parenting orders. This isnecessary to ensure that one of the main objects of Part VII of theAct is fulfilled and that children are able to have a meaningfulrelationship with both parents. In addition, the amendmentsrepeal the existing Division 13A of Part VII of the Act and replacethat Division with clearer and more accessible provisions that willmake the whole Division easier to understand.
Schedule3
The amendmentsin Schedule 3 provide for a less adversarial approach to be adoptedin all child-related proceedings under the Act. This approachrelies on active management by judicial officers of matters andensures that proceedings are managed in a way that considers theimpact of the proceedings themselves (not just the outcome of theproceedings) on the child. The intention is to ensure thatthe case management practices adopted by courts will promote thebest interests of the child by encouraging parents to focus ontheir parenting responsibilities.
Schedule4
Schedule 4contains a range of amendmentsto the counselling and dispute resolution provisions in the Act toensure the legislation supports the Government's policy of ensuringthat separating and divorcing parents have access to quality familycounselling and dispute resolution services so that they canattempt to resolve their disputes outside of the court .The amendments also provide the ability to protect the names andsymbols of certain services funded by the Government to provideassistance and support to people in the family law system (such asthe FamilyRelationship Centres). This protection willenhance the level of protection for these names and symbols inorder to ensure that the public is not mislead.
Schedule5
The amendmentsin Schedule 5 implement a number of the recommendations made by theFamily Law Council in its report, Pathways for Children: Areview of children’s representation in family law , whichexamines the role and basis of appointment of independentchildren’s lawyers. The amendments aim to clarify andstrengthen the role of the independent children’s lawyer forchildren, parties and lawyers acting in the role.
Schedule6
Schedule 6repeals and replaces the existing Division 11 of Part VII.This Division deals with the relationship between orders made underthe Act that provide for a child to spend time with a person, andfamily violence orders made under a law of a State or Territory toprotect a person from family violence. The amendments seek tomake Division 11 clearer, more concise and easier to understand bythe people who use and implement it, in particular, for State andTerritory Magistrates making family violence orders. Theamendments implement recommendations on the basis of adviceprovided by the FamilyLawCouncil.
Schedule7
Schedule 7repeals section 45A of the Act to enable the Federal MagistratesCourt to also exercise jurisdiction for those property matterswhere the value of the property exceeds $700,000. This willprovide more flexibility to ensure that matters are referred to themost appropriate court.
Schedule8
Schedule 8changes the terminology of the Act to remove the references to‘residence’, ‘contact’ and ‘specificissues orders’. This substantially implementsrecommendation 4 of the FCAC Report. The changes requireconsequential amendments to the terminology used in the Australian Citizenship Act 1948 , the AustralianCitizenship Act 2005 , the Australian Passports Act 2005 ,the Child Support (Assessment) Act 1989 and the MigrationAct 1958 .
Schedule9
Schedule 9moves all the defined terms from Part VII of the Act to subsection4(1) which is the general definition section for the Act.This will form a dictionary for all the terms defined in PartVII. The aim is to improve the readability of the Act forusers.
Schedule 10
Schedule 10 adds anew Part XIVB to the Act. This new part deals with invalid ordersmade by officers of State courts of summary jurisdiction, in thepurported exercise of jurisdiction under the Act. Theprovisions do not attempt to validate the judgments in the kinds ofproceedings in question, but create new statutory rights andliabilities that may be exercised and enforced in the same manneras valid judgments of the relevant court.
FINANCIAL IMPACT STATEMENT
Resources were approved in the 2005-2006Budget process for a community education campaign and foradditional dispute resolution services to satisfy increased demandcaused by compulsory pre-filing dispute resolution.
REGULATION IMPACT STATEMENT
The Office of Regulation Review has consideredthese proposed amendments and determined that a Regulation ImpactStatement is not required for the amendments.
CONSULTATIONSTATEMENT
There was broadconsultation by the FCAC in its inquiry into child custodyarrangements in the event of family separation in the second halfof 2003. The Committee received 1716 submissions from a broadcross-section of the community and family law system. TheCommittee undertook a wide ranging public hearing program acrossAustralia and consulted extensively with practitioners andacademics in the family law and child support fields. Twospecific forums were held to ensure that the Committee heard thevoices of children and young people.
In November2004 the Government released a discussion paper on its proposedresponse to the FCAC report. The discussion paper was used asa basis for consultation with the community, service providers andother stakeholders on the proposed changes to the family lawsystem. Twenty nine organisations were interviewedindividually, and there were 14 group meetings involving over 330people. Over 400 written submissions were received.
Since July2005, the Attorney-General has held community information sessionsacross Australia to provide information about the proposed familylaw reforms. As part of those sessions the Attorney-Generalinvited feedback on the reforms to ensure theireffectiveness.
The Bill hasbeen the subject of continuing community consultation since it wasreleased as an exposure draft in June 2005. In itsconsideration of the exposure draft, the LACA Committee receivedsome 88 submissions and held a number of hearings with a largerange of stakeholders.
NOTES ON CLAUSES
Clause 1 - Short title
This clause providesfor the Bill to be cited as the Family Law Amendment (SharedParental Responsibility) Act 2005.
Clause 2 - Commencement
2. This clause contains a table which sets out when each of theprovisions 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 ofthe schedules, and this commencement provision) and anything elsein the Bill not covered by the table, commence on the day which theBill receives Royal Assent.
4. Item 2 of the table provides that Schedules 1 and 2 commence on asingle day to be fixed by Proclamation. The amendments inSchedule 1 support and promote shared parenting and encouragepeople to resolve post separation parenting arrangements outside ofthe courts. Schedule 2 implements a range of amendments tostrengthen the existing compliance regime.
5. If any of the provisions in Schedules 1 and 2 do not commencewithin 6months from the day on which the Bill receives RoyalAssent, item 2 of the table provides that they will commence on thefirst day after this period.
6. Item 3 of the table provides that Schedule 3, which provides for aless adversarial approach to be adopted in child-relatedproceedings under the Act, commences on 1 July 2006. Thisdate coincides with the expected commencement of the FamilyRelationship Centres and the Family Court of Australia is expectedto have rolled out their Children’s Cases Program by thisdate. This is also consistent with the application provisionin item 8, Part 2 of this Schedule which provides that theamendments in the Schedule apply to proceedings commenced on orafter 1July2006.
7. Item 4 of the table provides that items 1 - 8 of Schedule 4commence on the day on which this Bill receives Royal Assent.These items will enable a wider range of organisations to apply forapproval and funding as a counselling or mediation organisation,and provide for the protection against unauthorised use ofprotected names and symbols, such as those used by FamilyRelationship Centres. As the first 15 FamilyRelationship Centres are expected to commence operation inmid-2006, the amendments made in this Part must take place as soonas possible to allow funding to be provided if an organisationother than a voluntary organisation applies for and is selected toreceive funding.
8. Item 5 of the table provides that items 9 - 139 of Schedule 4commence on the day on which the items are proclaimed. This islinked to the Proclamation of Schedules 1 and 2 by item2. Items 9 - 139 include a range of amendments to thecounselling and dispute resolution provisions in the Act to ensurethe legislation supports the Government's policy of ensuring thatseparating and divorcing parents have access to quality familycounselling and dispute resolution services so they can attempt toresolve their disputes outside of the court, transitionalarrangements in respect of changes to the process of approvingorganisations to provide family counselling and family disputeresolution and individual accreditation requirements, and a rangeof consequential amendments to the Federal Magistrates Act1999 and the Marriage Act 1961 .
9. Item 6 of the table provides that Schedules 5, 6, and 7 commence atthe same time as the provisions covered by table item 2 (theprovisions in Schedules 1 and 2). Schedule 5 containsamendments to clarify and strengthen the role of the independentchildren’s lawyer. Schedule 6 repeals and replaces theexisting Division 11 which deals with the relationship betweenorders made under the Act and family violence orders made under alaw of a State or Territory. Schedule 7 amends thejurisdictional limit for the Federal Magistrates Court to providemore flexibility to ensure that matters are referred to the mostappropriate court.
10. Item 7 ofthe table provides for the contingent commencement of item 1 ofSchedule 8. Item 1 amends the definition of‘responsible parent’ in section 5 of the Australian Citizenship Act1948 . It is to commence at the same time as theprovisions covered by table item 2 (the provisions in Schedules 1and 2), unless the Australian Citizenship Act 2005 commencesbefore that time. In this case, item 1 will not commence atall. Item 2 of Schedule 8 will achieve the necessaryamendment. This provision is necessary as the AustralianCitizenship Act 1948 is currently in force but may be replacedby the Australian Citizenship Act 2005 before Schedule 8commences.
11. Item 8 ofthe table provides for the commencement of item 2 of Schedule8. Item 2 amends the definition of ‘responsibleparent’ in section 6 of the Australian Citizenship Act2005. It is to commence either at the same time as theprovisions covered by table item 2 (the provisions in Schedules 1and 2), or immediately after the Australian Citizenship Act2005 commences, whichever is later.
12. Item 9 ofthe table provides for the commencement of the remaining items inSchedule 8 (items 3 - 98) which change the terminology of theAct to remove references to the terms ‘residence’,‘contact’ and ‘specific issuesorders’. These provisions commence at the same time asthe provisions covered by table item 2 (the provisions in Schedules1 and 2).
13. Item 10 ofthe table provides for the commencement of the items inSchedule9. The provisions in this schedule move thedefined terms from Part VII (Children) of the Act to subsection4(1) which is the general definition section for the Act.This forms a dictionary for all the terms defined in PartVII. These provisions commence at the same time as theprovisions covered by table item 2 (the provisions in Schedules 1and 2).
14. Item 11 ofthe table provides for the commencement of the items inSchedule10. This schedule provides for the new PartXIVB (Orders of non-judicial officers of State courts of summaryjurisdiction). The provisions in Schedule 10 commence on theday on which this Bill receives Royal Assent.
Clause 3- Schedules
15. Thisclause provides that each Act that is specified in a Schedule tothe Bill is amended or repealed as set out in the applicable itemsin the Schedule.
SCHEDULE 1- SHARED PARENTAL RESPONSIBILITY
Part 1- Amendments
FamilyLaw Act 1975
16. Theamendments in Schedule 1, Part 1 recognise the need for acooperative approach to parenting. The amendments promote theobject of ensuring that children have a right to have a meaningfulrelationship and know both their parents and that parents continueto share responsibility for their children after theyseparate. The Part also reinforces the primary importance forthe child to live in an environment where they are safe fromviolence or abuse. The changes to the Act also advance theGovernment’s longstanding policy of encouraging people totake responsibility for resolving disputes themselves, in anon-adversarial manner.
17. Schedule1, Part 1 implements a number of recommendations made by the FCACto support and promote shared parenting and to encourage people toreach agreements about parenting, rather than using the courtsystem. It also implements a number of recommendations madeby the LACA Committee in their inquiry into the provisions of theexposure draft of the Bill.
Item 1 - Subsection 4(1)
18. Item 1inserts a definition of ‘Aboriginal child’ into theconsolidated definitions in subsection 4(1) of the Act. Thedefinition facilitates new paragraphs60B(2)(e)and60CC(3)(h), and subsections 60B(3) and 60CC(6), whichrelate to the right of an Aboriginal or Torres Strait Islanderchild to enjoy his or her own culture. The amendmentimplements recommendation45 of the LACA Report that‘Aboriginal child’ means ‘a child who is adescendent of the Aboriginal people ofAustralia’.
19. While thisdefinition replaces the previous definition of 'Aboriginal peoples'in subsection 68F(4) of the existing Act, it is not envisaged thatthis will significantly change the group of people who may becovered by the definition. It will make the definition ofAboriginal child consistent with the previous definition of TorresStrait Islander child. The LACACommittee considered itappropriate for the definitions of Aboriginal and Torres StraitIslander children to be standardised and to focus on the fact ofindigenous descent rather than race.
Item 2- Subsection 4(1)
20. Item 2inserts a definition of ‘Aboriginal or Torres Strait Islanderculture’ into the general definitions in subsection 4(1),which now sets out the definitions for Part VII of the Act.This definition facilitates new paragraphs60B(2)(e)and60CC(3)(h), and subsections60B(3) and 60CC(6), whichrelate to the right of an Aboriginal or Torres Strait Islanderchild to enjoy his or her own culture. The term‘Aboriginal or Torres Strait Islander culture’ meansthe culture of the Aboriginal and Torres Strait Islander communityor communities to which the child belongs, which includes, but isnot limited to, the lifestyle and traditions of that community orcommunities. This implements recommendation 46 oft he LACA Report that the definition beredrafted to include the words ‘of the relevantcommunity/communities’. The LACA Committee adopted thisrecommendation from a submission by the Aboriginal Legal Service ofWestern Australia.
Item 3 -Subsection 4(1)
21. Item 3moves the definition of 'family violence' from section 60D of theexisting Act (that provides definitions for Part VII) to thegeneral definition provision in subsection 4(1). Thedefinition has also been amended to implement recommendation 9 ofthe LACA Report that the definition of family violence shouldinclude an objective element. A requirement of‘reasonableness' is added to the existing definition. Whilethere is no requirement for reasonableness for violence that hasactually occurred, fear or apprehension of violence must bereasonable. This will help to address concerns that have beenexpressed that allegations of family violence can be made in familylaw proceedings even where a fear of violence is far fetched orfanciful.
22. Thisapproach is not new. In South Australia, the DomesticViolence Act 1994 has for some time provided a concept of‘reasonable’ fear or apprehension in relation to thedefinition of family violence. In addition, several Statecriminal codes have elements of reasonableness in relation tospecific offences, in particular stalking type offences which alsorequire a reasonable apprehension or fear to be established.
23. Thischange will not make it harder for people to disclose familyviolence. It does not change the definition where there has beenactual violence. The courts already impute an element ofreasonableness when applying the existing definition of familyviolence. However, this change will clarify, particularly forself-represented litigants, that the court will only take intoaccount issues of violence where the fear of harm is‘reasonable’. This change is not intended tosuggest that violence is acceptable. Given the seriousconsideration that courts give to family violence in makingparenting orders these matters should be objectively tested.Family violence crime and should not be tolerated.
Item 4- Subsection 4(1)
24. Item 4inserts a new definition of ‘major long-term issues’into the general definitions in subsection 4(1), which now sets outthe definitions for Part VII of the Act. The definitionprovides a non-exclusive list of the types of long-term care,welfare and development issues which are components of parentalresponsibility. These long-term issues may include thechild’s education (both current and future), thechild’s religious and cultural upbringing, the child’shealth, the child’s name, and changes to the child’sliving arrangements that make it significantly more difficult for achild to spend time with a parent. This last provision isconsistent with recommendation 3 of the FCAC Report and has beenamended in light of recommendation 2 of the LACA Report.
25. It isintended that ‘the child’s education’ inparagraph (a) will capture issues such as which school a childattends. ‘The child’s religious and culturalupbringing’ in paragraph (b) is intended to include decisionsrelating to which religion a child is, or which cultural practicesa child might observe. It is intended that ‘thechild’s health’ in paragraph (c) will not capture achild’s short-term illness, such as a cold, but may captureissues such as immunisation, which may affect the child’slong-term health or when the child has ongoing medical needs.It is intended that ‘the child’s name’ inparagraph (d) of the definition will capture a child’s firstname, middle name and surname.
26. ‘Changes to the child’s living arrangements that makeit significantly more difficult for the child to spend time with aparent’ in paragraph (e) is intended to cover any substantialchanges to the type and location of the residence in which thechild usually lives. Paragraph(e) is not intended tocover situations where the child relocates to another residencewithin the same locality unless it is a significant change thatimpacts on the child’s ability to spend time with theparent.
27. The wordsfollowing paragraph (e) clarify that a decision by a parent of achild to form a relationship with a new partner is not, of itself,a major long-term issue. This implements recommendation 2 ofthe LACA Committee which noted that the key issue about decisionsrelated to where a child lives is the capacity for the other parentto maintain and develop a relationship by spending time with thatchild. Paragraph (e) does not prevent a new partner movinginto a residence where the child lives without a joint decisionwith the former spouse. The factor is intended to coversituations such as significant relocation where joint decisions areappropriate given the significant impact on the capacity for bothparents to exercise parental responsibility.
28. Theconcept of ‘major long-term issues’ is relevant for newsections 65DAC and 65DAE, both inserted by item 31. Thesesections provide that, where parents are exercising shared parentalresponsibility in accordance with the terms of a parenting orderthat involves making a decision about a major long-term issue inrelation to a child, both parents are required to discuss anyproposed decision with each other and reach agreement about thedecision. However, where a child is spending time with aperson pursuant to the terms of a parenting order, that person isnot required to consult on decisions about issues that arise duringthat time that are not major long-term issues. Of course,parents may choose to consult on these issues. The clarification ofwhat issues are major long-term issues is intended to reducedisputes about what falls into this category and to make it clearthat day to day decisions can be made by the parent who has care ofthe child, thus reducing litigation about those issues.
Item 5- Subsection 4(1)
29. Item 5inserts a new definition of ‘relative’ into the generaldefinitions in subsection 4(1), which now sets out the definitionsfor Part VII of the Act. It is a broad definition of‘relative’, which includes step-parents, siblings,half-siblings, grandparents, uncles, aunts, nephews, nieces andcousins. This definition is relevant for new subsections63C(2A), 64B(2), paragraphs 60CC(3)(b) and 60CC(3)(f) andsubparagraph 60CC(3)(d)(ii). Item 5 implements recommendation44 of the LACA Committee which recommended using the term‘step-parent’ rather than ‘step-father orstep-mother’ in the definition of relative. Thisbroad definition is intended to ensure the court takes account ofother significant relationships that may be of benefit to a childin making children’s orders.
Item 6- Subsection 4(1)
30. Item 6inserts a definition of ‘Torres Strait Islander child’into the general definitions in subsection 4(1), which now sets outthe definitions for Part VII of the Act. It provides that‘Torres Strait Islander child’ means a child who is adescendent of the indigenous inhabitants of the Torres StraitIslands. This is a relatively common definition, which waspreviously defined in subsection68F(4) of the Act. Thisdefinition has been used in legislation such as the Native TitleAct 1993, the Racial Discrimination Act 1975 and the new Corporations (Aboriginal and TorresStrait Islander) Bill 2005. This definitionfacilitates new paragraphs 60B(2)(e) and60CC(3)(h), andsubsections 60B(3) and 60CC(6), which relate to the right of anAboriginal or Torres Strait Islander child to enjoy his or her ownculture.
Item 7 - Atthe end of section 4
31. Item 7inserts two new subsections into the definitions in section 4 ofthe Act to facilitate the operation of the new provisions relatingto shared parental responsibility. Section 4 containsdefinitions of terms and provisions that are used in the Act.The new subsections make clear that where the Act refers to aperson having shared parental responsibility for a child, it is areference to parental responsibility held singularly or jointlywith another person. This recognises that when referring to‘parental responsibility’, not all parents will shareall aspects of the duties, responsibilities or authoritiesassociated with parental responsibility, but that they may share acomponent or components of that responsibility while othercomponents may be the responsibility of one parent only.These subsections are important to clarify the scope of theterm.
Item 8- Section 60B
32. Item 8repeals the existing objects and principles of Part VII of the Act,which are set out in section 60B. The new provision betterfocuses the objects and principles of the Part on the bestinterests of the child and shared parental responsibility betweenparents. It implements recommendation 3 of the FCAC Reportand recommendation17 of the LACA Report.
33. Newsubsection 60B(1) states that the objects of Part VII are to ensurethat the best interests of children are met by the items set out inparagraphs (a), (b), (c) and (d). The inclusion of thereference to ‘the best interests of children’ is togive greater emphasis to those interests when interpreting otherprovisions.
34. Theobjects that were already provided for in section 60B of the Actare now set out in subparagraphs 60B(1)(c) and (d). Theseinclude ensuring that children receive adequate and properparenting to help them achieve their full potential and ensuringthat parents meet their responsibilities concerning the care,welfare and development of their children.
35. Section60B also includes two new objects. These objects mirror theprimary considerations in new section 60CC that must be consideredby a court in making decisions about the best interests of thechild. These two new objects are placed at the start of theobjects provision to draw attention to them. There is noparticular priority to the objects - each is important. Thefirst is set out in paragraph 60B(1)(a). It recognises theimportance of ensuring that children are given the opportunity fortheir parents to have a meaningful involvement in their lives tothe maximum extent possible, consistent with their bestinterests. The intention is to better recognise that childrenhave a right to know their parents and the benefit to children ofhaving a good relationship with both of their parents.However, it is also recognised that this may not be appropriate insituations such as where the safety of the child would be atrisk.
36. The secondnew object is inserted in new paragraph 60B(1)(b). Itrecognises that there is a need for children to be protected fromphysical and psychological harm from being subjected to, or exposedto, abuse, neglect or family violence. The provisionrecognises that children need to be protected not only from directharm but also harm caused by being exposed to abuse or familyviolence that is directed towards, or affects, anotherperson. This would cover, for example, the possiblepsychological harm to a child caused by the child witnessing abuseagainst another child, or family violence against a member of thechild’s family. This new object implementsrecommendation 2 and conclusion 2.29 of the FCAC Report andrecommendations 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 itcovers protection both from direct harm and from witnessingviolence towards another person.
37. The terms‘abuse’ and ‘family violence’ are relocatedto the general definition section at subsection 4(1). Familyviolence 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 childprotection legislation. It is intended to be limited tosituations where a lack of reasonable care is likely to causeunnecessary suffering or injury to the health of thechild.
38. Subsection60B(2) sets out the principles that underlie the objects of theAct. Paragraph 60B(2)(a) remains the same as in the existingAct. It states that children have the right to know and becared for by both their parents, regardless of whether theirparents have married, separated or have never married or livedtogether.
39. Paragraph60B(2)(b) is amended to specifically refer to children having aright to spend time on a regular basis with grandparents and otherrelatives who are significant to their care, welfare anddevelopment. This amendment recognises the important rolethat grandparents and other relatives play in a child’slife. It implements recommendation 43 of the LACA Report andis consistent with the other amendments in the Bill to facilitategreater involvement of extended family members in the lives ofchildren.
40. Paragraphs60B(2)(c) and (d) provide that parents should jointly share dutiesand responsibilities concerning the care, welfare and developmentof their children and should agree about the future parenting oftheir children. These principles remain essentially the sameas in the existing Act.
41. Newsubparagraph 60B(2)(e) expands the existing principles thatunderlie the objects of PartVII, by including a reference tochildren having a right to enjoy their culture. The provisionis intended to ensure that children are able to share their culturewith others in their cultural community or communities (insituations where a child might belong to more than onecommunity). The inclusion of this principle is consistentwith the provisions relating specifically to Aboriginal and TorresStrait Islander children resulting from recommendation 3 of theFamily Law Council’s December 2004 Report, Recognition ofTraditional Aboriginal and Torres Strait Islander Child-RearingPractices: Response to Recommendation 22: Pathways Report, Out ofthe Maze . It is not intended to be limited only toAboriginal and Torres Strait Islander children.
42. Asdetailed above, new subparagraph 60B(2)(e) inserts a new principlethat every child has a right to enjoy his or her culture. Newsubsection 60B(3) expands this principle, which underlies theobjects of Part VII, in relation to Aboriginal and Torres StraitIslander children by identifying matters included in the right ofan Aboriginal or Torres Strait Islander child to enjoy his or herculture. New subsection 60B(3) clarifies that the rightincludes the right of an Aboriginal or Torres Strait Islander childto maintain a connection with his or her culture and to have thesupport, opportunity and encouragement necessary to develop apositive appreciation of that culture and to explore the fullextent of that culture, consistent with the child’s age anddevelopmental level and the child’s views.
43. Thesechanges implement recommendation 3 of the Family LawCouncil’s December 2004 Report, Recognition of TraditionalAboriginal and Torres Strait Islander Child-Rearing Practices:Response to Recommendation 22: Pathways Report, Out of theMaze . These changes are also consistent with otherchanges in the Act to ensure the role of relatives and extendedfamily is better recognised.
Item 9 - After Subdivision B ofDivision 1 of Part VII
Subdivision BA - Best interests ofthe child
44. Item 9inserts a new Subdivision dealing with the best interests of thechild into Division 1 of Part VII. This will give greaterprominence at the start of the Division to these issues which arerelevant to a large range of issues. This is aimed to assistpeople making agreements to make all their post separationdecisions with a child focus. The consolidation of theprovisions close to the start of Part VII is useful given thegreater prominence to the best interests now in the objects andprinciples in section 60B.
Section 60CA - Child’s bestinterests paramount consideration in making a parentingorder
45. Section60CA moves the existing section 65E which provides that the courtmust regard the best interests of the child as the paramountconsideration in deciding whether to make a particular parentingorder to section 60CA in new Subdivision BA in Division 1, Part VII(Children). The intention is to increase the visibility andemphasis of this important provision. This is consistent withrecommendation 16 of the LACA Committee.
Section 60CB - Proceedings to whichthis Subdivision applies
46. Section60CB describes the proceedings to which the new Subdivision BA willapply. These include:
· any proceedings under Part VII of the Act dealing with children inwhich the best interests of a child are the paramountconsideration; and
· proceedings in relation to a child to which subsection60G(2),63F(2) or 63F(6) or section 68R apply as in these provisionsthe best interest of the child must be considered.
47. The noteto section 60CB highlights that Division 10 allows a court to makean order for a child’s interests to be independentlyrepresented by a lawyer in proceedings under Part VII in which thebest interests of a child are the paramountconsideration.
Section 60CC - How a court determineswhat is in a child’s best interests
48. Section60CC replaces existing section 68F. It is the section thatsets out the primary and additional considerations for the court toconsider in determining a child’s best interests.
Section60CC(2) - Primary considerations
49. Theamendment to section 60CC creates two tiers of considerations thatthe court must take account of in determining what is in the bestinterests of a child. The primary considerations arecontained in the new subsection 60CC(2). They include thebenefit to the child of having a meaningful relationship with bothparents and the protection of the child from physical andpsychological harm. The safety of the child is not intendedto be subordinate to the child’s meaningful relationship withboth parents. The intention of separating these factors intotwo tiers is to elevate the importance of the primary factors andto better direct the court’s attention to the revised objectsof Part VII of the Act which are set out in the new section 60B(inserted by item 8).
50. Forexample in a case where there is family violence or sexual abusethen keeping the child safe will have particular relevance.In other cases not involving any issues of safety that will be lessrelevant and the issue of the benefit of a meaningful relationshipwith both parents will be the primary factor although other factorsin the secondary list, such as the child’s views, or failureto previously fulfil parental responsibilities without any reasonmay also be considered as relevant.
51. There maybe some instances where these secondary considerations may outweighthe primary considerations. For example the court may have acase of a teenage indigenous child who wants to keep living with aparent to maintain their connection to traditional culture.The other parent who lives far away and is unable to travelregularly also seeks residence. They also havedemonstrated that they will not facilitate connection withculture. In such a circ*mstance the court may well decidethat for that particular child the secondary factors mayeffectively outweigh that consideration and that it would not be inthe best interests of that child to change residence, the court mayconsider other ways the child and parent can maintain a meaningfulrelationship.
52. Theprimary factors mirror the first two objects set out in new section60B. These objects are elevated to primary considerations asthey deal with important rights of children and encourage achild-focused approach. The elevation of the object relatingto the benefit to the child of having a meaningful relationshipwith both parents is consistent with the introduction of apresumption in favour of equal shared parental responsibility.
53. Thewording of the new primary factor concerning the need to protectchildren from harm is consistent with the approach recommended bythe LACA Committee in recommendation 18. The Committeerecommended simplifying the provision so that the phrase is simpleand forceful and focuses on the key issue of ensuring safety of thechild.
Additionalconsiderations - Section 60CC(3)
54. The secondtier of additional considerations in the new subsection 60CC(3)consists of the existing considerations in subsection 68F(2) of theAct. These have been modified as outlined below.
Paragraph60CC(3)(a)
55. Thereferences to a child’s ‘wishes’ in paragraph68F(2)(a) have been changed to references to a child’s‘views’. Paragraph 60CC(3)(a) now provides thatin determining what is in a child’s best interests the courtmust consider, amongst other factors, any ‘views’expressed by the child and any other factors that the court thinksare relevant to the weight it should give to the child’s‘views’.
56. Theamendment recognises that a child may not necessarily want toexpress a ‘wish’ about which of his or her parents thechild will live with or spend time with. It is intended that‘views’ will also capture a child’s perceptionsand feelings, and will allow for any decision to be made inconsultation with the child without the child having to make adecision or express a ‘wish’ as to which parent he orshe is to live with or spend time with. It is intended thatreferences to a child’s ‘views’ will not excludea child expressing his or her ‘wishes’.
57. Replacingreferences to a child’s ‘wishes’ to achild’s ‘views’ is also consistent with thewording in Article 12 of the United Nations Convention on theRights of the Child.
Paragraph 60CC(3)(b)
58. Newparagraph 60CC(3)(b) replaces existing paragraph 68F(2)(b) with amodification. Existing paragraph 68F(2)(b) provides thatwhere the court is determining the best interests of the child, itmust consider the nature of the relationship with each of thechild’s parents and with other persons. This provisionhas been modified to include an explicit reference to grandparentsor other relatives of the child. This change further ensuresthat the court recognises the importance of the relationships thatthe child has with their wider family, in particulargrandparents.
Paragraph60CC(3)(c)
59. A newconsideration in determining what is in the best interests of achild has been added in paragraph 60CC(3)(c). The additionalconsideration is the willingness and ability of each of thechild’s parents to facilitate and encourage a close andcontinuing relationship between the child and the otherparent. This criterion will need to be considered by thecourt 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 mustconsider the extent to which each of the parents has fulfilled orfailed to fulfil their parental obligations.
Paragraph60CC(3)(d)
60. Paragraph60CC(3)(d) replaces existing paragraph 68F(2)(c) with amodification. Subparagraph 68F(2)(c)(ii) has been modified tomake an explicit reference to grandparents or otherrelatives. The existing provision provides that, indetermining what is in the best interests of a child, the courtshould consider the likely effect of any change of thechild’s circ*mstances particularly in relation to separationfrom his or her parents and other persons with whom the child has arelationship. New subparagraph 60CC(3)(d)(ii) makes anexplicit reference to grandparents or other relatives. Thischange ensures that the court recognises the importance of therelationships that the child has with wider family in particulargrandparents.
Paragraph60CC(3)(e)
61. Paragraph60CC(3)(e) mirrors the existing paragraph 68F(2)(d) which requiresthe court, when determining a child’s best interests, toconsider the practical difficulty and expense of a child spendingtime with and communicating with a parent and whether this willaffect the child’s right to maintain personal relations anddirect contact with both parents on a regular basis.
Paragraph60CC(3)(f)
62. Paragraph60CC(3)(f) replaces existing paragraph 68F(2)(e) with amodification. Paragraph 68F(2)(e) has been modified to makean explicit reference to grandparents or other relatives.This provision provides that in determining the best interests ofthe child, the court should consider the capacity of the parent orof any other person to provide for the needs of the child,including emotional and intellectual needs. The amendedparagraph 60CC(3)(f) recognises the importance of the relationshipsthat the child has with wider family, in particulargrandparents.
Paragraphs60CC(3)(g) and (h)
63. Paragraphs60CC(3)(g) and (h) replace existing paragraph 68F(2)(f).Paragraph 68F(3)(g) provides that the court must consider thematurity, sex, lifestyle and background of the child, and either ofthe child’s parents, as well as any other characteristics ofthe child that the court thinks are relevant. The lifestyle,culture and traditions of a parent or child are relevant to aconsideration of their background.
64. Aboriginalpeoples and Torres Strait Islanders are now referred tospecifically in the new subparagraph 60CC(2)(h). Thesubparagraph provides that the court must take into account theright of an Aboriginal or Torres Strait Islander child to enjoy hisor her culture, and the likely impact that any proposed parentingorder will have on that right. This paragraph supportsrecommendation 4 in the Family Law Council’s December 2004Report, Recognition of Traditional Aboriginal and Torres StraitIslander Child-Rearing Practices: Response to Recommendation 22:Pathways Report, Out of the Maze .
65. Theexisting paragraph 68F(2)(g) which deals with the need to protectthe child from physical or psychological harm has been elevated toa primary consideration in the new subsection 60CC(2) (discussedabove). The wording of this factor has also been simplifiedin accordance with recommendation 18 of the LACA Report.
Paragraph60CC(3)(i)
66. Paragraph60CC(3)(i) mirrors the existing paragraph 68F(2)(h) which requiresthe court, when determining a child’s best interests, toconsider the attitude of a parent to the child and theresponsibilities of parenthood. New subsection 60CC(4)provides that in considering this factor, the court mustconsider to extent to which each of the child’s parents hasfulfilled, or failed to fulfil, his/her responsibilities as aparent. This includes the extent to which each parent hastaken, or failed to take, the opportunity to spend time with thechild, communicate with the child, and participate indecision-making about major long-term issues in relation to thechild. It also includes the extent to which each parent hasfacilitated, or failed to facilitate, the other parent doing thesethings and the extent to which each parent has fulfilled, or failedto fulfil, his/her obligation to maintain the child.
Paragraph60CC(3)(j)
67. Paragraph60CC(3)(j) mirrors the existing paragraph 68F(2)(i) which directsthe court to consider any family violence involving the child or amember of the child’s family. The court will take thisinto account giving such weight as is appropriate to the evidencebefore it. Item 3 moves the definition of family violence tothe general definition provision at subsection 4(1) of theAct. It also amends the definition to include an element of“reasonableness” in the fear or apprehension ofviolence. That amendment is consistent withrecommendation 9 of the LACA Report.
Paragraph60CC(3)(k)
68. Paragraph60CC(3)(k) modifies the existing paragraph 68F(2)(j) which directsa court to consider any family violence order that applies to thechild or a member of the child’s family. New paragraph60CC(3)(k) provides that this only includes a final or contestedfamily violence order. The intention of this subsection is toensure that the court does not take account of uncontested orinterim family violence orders. This should address aperception that violence allegations are taken into account withoutproven foundation in some family law proceedings.
69. TheGovernment does not consider that that this amendment has thepotential to place children at risk. In determining the bestinterests of the child, the court will consider, as a primaryconsideration, the need to protect children from harm undersubsection 60CC(2). The court may also have regard to anyfamily violence involving the child or a member of thechild’s family under paragraph 60CC(3)(j). The LACACommittee considered this amendment appropriate.
70. Inrelation to allegations of violence, Schedule 3 contains amendmentsto implement new procedures for the conduct of those family lawmatters that do go to court. The more active case managementapproach will ensure that allegations of violence and abuse aredealt with at an earlier stage in the court process and thatjudicial officers are better able to ensure that appropriateevidence is before them to assist the court to better address theseissues in the proceedings. New section 60K (inserted by item11) places an obligation on the court to take prompt action inrelation to allegations of child abuse or familyviolence.
Paragraphs60CC(3)(l) and (m)
71. Paragraphs60CC(3)(l) and (m) mirror the existing paragraphs 68F(2)(k) and (l)which direct the court to consider whether it would be preferableto make the order that would be least likely to lead to theinstitution of further proceedings in relation to the child and anyother fact or circ*mstances that the court thinks is relevant.
Subsection60CC(4)
72. Subsection60CC(4) provides that in considering the factors set out atparagraphs 60CC(3)(c) and (i), the court must consider toextent to which each of the child’s parents has fulfilled, orfailed to fulfil, his/her responsibilities as a parent. Thisincludes the extent to which each parent has taken, or failed totake, the opportunity to spend time with the child, communicatewith the child, and participate in decision-making about majorlong-term issues in relation to the child. It also includesthe extent to which each parent has facilitated, or failed tofacilitate, the other parent doing these things and the extent towhich each parent has fulfilled, or failed to fulfil, his/herobligation to maintain the child. It would not cover asituation where a parent is willing to fulfil their obligations butprevented due to the other parents unwillingness to facilitatethis. The court would in such a case be taking account of theunwillingness.
73. Newsubsection 60CC(4) seeks to ensure that when determining the bestinterests of the child the court is able to take into accountwhether a person has failed to fulfil their parental responsibilityobligations in the past. Thus the court will take intoaccount the fact a person has failed to pay child support or hasconsistently broken contact arrangements in the past without regardto the best interests of their child. This is appropriate asthe failure of a parent to fulfil their parental responsibilityobligations can have a significant impact on the child and isrelevant to any determination of the child’s bestinterests.
74. Newsubsection 60CC(4A) addresses concerns about the operation ofsubsection 60CC(4). The amendment makes clear that the courtis to particularly focus on post-separation parenting whenconsidering the fulfilment of parental responsibility as a factorrelevant to the best interests of the child.
75. It is notintended that subsection 60CC(4) provide an opportunity for parentsto litigate on whether they were fulfilling their responsibilitieswhile together or raise trivial or immaterial matters about theirconduct before separation. The intention is for the court toconsider the extent a parent has failed to meet their materialparental responsibilities that are relevant to the best interestsof the child such as paying child support or complying with contactorders. The Government recognises that the main period ofinterest for the court is the post-separation period, as parentalattitudes and behaviour in relation to responsibilities may changeon separation. However, subsection 60CC(4) may also apply tosome cases where it is meaningless to talk about‘post-separation’, such as where parents have neverlived together.
76. Like otherprovisions setting out factors the court must take into account indetermining a child’s best interests, it is not expected thatthe court would take into account trivial or inconsequentialmatters in determining whether this factor is relevant to thedecision of what is in the best interests of the child.
Subsection60CC(5) - Consent orders
77. Newsubsection 60CC(5) provides that if the court is consideringwhether to make an order with the consent of all the parties to theproceedings, the court may have regard to all or any of the mattersset out in subsections (2) and (3). These subsections containthe primary and additional considerations that a court considers indetermining a child’s best interests. This allows thecourt to take these considerations into account and is consistentwith the Government’s policy of encouraging people to takeresponsibility for resolving disputes themselves, in anon-adversarial manner. The provision is essentially the sameas the existing subsection 68F(3).
Subsection60CC(6) - Right to enjoy Aboriginal or Torres Strait Islanderculture
78. For thepurpose of new paragraph 60CC(3)(h), new subsection 60CC(6)clarifies the meaning of an Aboriginal or a Torres Strait Islanderchild’s right to enjoy his or her culture. Theprovision reflects the importance of Aboriginal and Torres StraitIslander children being able to maintain a connection with theirculture and to have the support, opportunity and encouragementnecessary to develop a positive appreciation of that culture and toexplore the full extent of that culture, consistent with thechild’s age and developmental level and the child’sviews. These changes are made as a result of recommendation 4in the Family Law Council’s December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait IslanderChild-Rearing Practices: Response to Recommendation 22: PathwaysReport, Out of the Maze .
Section 60CD- How the views of a child are expressed
79. Section60CD replaces the existing subsection 68G(1) which is the sectionthat deals with how the court may inform itself of views expressedby a child. Section 60CD changes the references to achild’s ‘wishes’ to a child’s‘views.’ Subsection 60CD(1) now providesthat the section deals with how a court is to consider achild’s ‘views’, rather than a child’s‘wishes’, under paragraph 60CC(2)(a) of the Act whenmaking a determination about what is in a child’s bestinterests. Subsection 60CD(2) provides that a court mayinform itself of the ‘views’, rather than the‘wishes’, expressed by a child by having regard to areport prepared by the relevant person or, subject to anyapplicable Rules of Court, by such other means as the court thinksappropriate.
80. Thereasons for this change are outlined in relation to Paragraph60CC(3)(a), above.
Section 60CE- Children not required to express views
81. Section60CE replaces the existing section 68H. It changes thereferences to a child’s ‘wishes’ to achild’s ‘views’. Section 60CE now providesthat nobody can require a child to express his or her‘views’ in relation to the any issue. The reasonsfor this change are outlined in relation to Paragraph 60CC(3)(a),above.
Section 60CF- Informing court of relevant family violence orders
82. Section60CF sets out the responsibility of the parties to the proceedingsto inform the court of any relevant family violence order.This provision is in exactly the same terms as section 68J of theexisting Act. It has been moved to the new Subdivision BA inDivision 1, Part VII (Children) along with the other provisions inSubdivision B of Division 10, Part VII (Children) of the existingAct.
Section 60CG- Court to consider risk of family violence
83. Section60CG requires the court to ensure, when it makes an order, that theorder is consistent with any family violence order that may be inplace; and does not expose a person to an unacceptable risk offamily violence. The court must do so to the extent that itis possible consistent with the child’s best interestsremaining the paramount consideration. Subsection 60CG(2)provides that the court may include in the order any safeguardsthat it considers necessary for the safety of those affected by theorder. Section 60CG is in exactly the same terms as section68K of the existing Act. It has been moved to the newSubdivision BA in Division 1, Part VII (Children) along with theother provisions in Subdivision B of Division 10, Part VII(Children) of the existing Act.
Item 10- Subsection 60G(2)(note)
84. Item 10 isa consequential amendment to the note after subsection60G(2). The reference to Division 10 is replaced with areference to ‘Sections 60CB to 60CG’. Thisamendment is necessary as the relevant provisions dealing with thebest interests of the child have moved from Division 10 to newSubdivision BA in Division 1 of Part VII.
Item 11- At the end of Division 1 of Part VII
SubdivisionE - Family dispute resolution
85. Item 11inserts a new Subdivision E into Division 1 of Part VII of the Actwhich is the Part that deals with children. New Subdivision Edeals with family dispute resolution and family counselling.It inserts new section 60I into the Act which provides forcompulsory attendance at family dispute resolution in a range ofcirc*mstances, prior to lodging an application with thecourt. This is a key change to encourage a culture ofa*greement making and avoidance of an adversarial court system.
86. The objectof new section 60I, which is set out in subsection 60I(1), is toensure that parties attempt to resolve their disputes aboutchildren’s matters that can be dealt with under PartVIIof the Act, before commencing a court process. This willassist people in resolving family relationship issues outside ofthe court system, which is costly and can lead to entrenchedconflict. This item substantially implements recommendation 9of the FCAC Report.
Phases of Commencement
87. There is astaged commencement of the requirement for people to attend adispute resolution process before applying for a Part VIIorder. The three phases are set out in subsections 60I(2) to(6). The reason for the staged commencement is to allow forthe rollout of the Family Relationship Centres and the increasedfunding for dispute resolution services announced in the 2005-06Federal Budget. This will ensure there are sufficient disputeresolution services to assist in meeting the demand. Thiswill also allow time for development of a process for accreditationof dispute resolution practitioners.
88. In orderto ensure the quality of services delivered by family counsellors,family dispute resolution practitioners and workers in Governmentfunded children’s contact services, competency-basedaccreditation standards are currently being developed by theCommunity Services and Health Industry Skills Council(CSHISC). These standards will form the minimum requirementsfor family counsellors, family dispute resolution practitioners andworkers in funded children’s contactservices.Schedule 4 contains a framework for theintroduction of the accreditation system.
89. Phase 1 isfor proceedings filed from the commencement of this Bill to30June2007. It provides that during this time,people who have a dispute about matters that may be dealt with by aparenting order must comply with the dispute resolution proceduresrelevant to a parenting order that are set out in the Family LawRules 2004 (the Rules). Currently, Rule1.05provides that before starting a case, each prospective party to thecase must comply with the pre-action procedures, set out in Part 2of Schedule 1 of the Rules, which include attempting to resolve thedispute using dispute resolution methods.
90. Thisrequirement will apply to all courts exercising jurisdiction underthe Act, including the Federal Magistrates Court and State andTerritory Courts, with such modifications as may be necessary, asprovided for in subsection 60I(3). For example there may bedifferent forms used for different steps of the process dependingon which court the matter is being heard in. It is intended thatthe penalties set out in the Family Law Rules for non-compliance orunreasonable non-compliance (such as case managementconsequences or cost orders) in clause 2 of Part 2 of the Ruleswill apply during Phase 1.
91. Phase 2provides that subsections 60I(7) to (11) will apply to a Part VIIorder in relation to a child if the application is made on or after1 July 2007 and before the date fixed by Proclamation and none ofthe parties have applied for a Part VII order in relation to thechild before 1 July 2007. New applicants to the courts aremost likely to benefit from the use of the dispute resolutionservices, as their disputes may not be as entrenched as thoseparties already in the litigation process.
92. Phase 2increases the number of people the provisions will apply to, butallows for the continued rollout of Family RelationshipCentres. Using a date fixed by Proclamation to set the limitsof Phase 2 allows for necessary flexibility in relation to the fullrollout of the Family Relationship Centres. This responds torecommendation 25 of the LACA Report which reflected concerns thatthere might be a legislative obligation imposed on people prior toservices being available.
93. Phase 3,in subsection 60I(6), applies subsections 60I(7) to (11) to allapplications for a PartVII order that are made on or after afurther Proclamation. At this stage, all Family RelationshipCentres and funding will be rolled out.
Requirement to attempt to resolve disputeby family dispute resolution before applying for a parentingorder
94. Subsection60I(7) is the key operational provision. It provides that acourt cannot hear an application for an order under PartVIIunless the applicant has also filed, with the application, acertificate by a family dispute resolution practitioner. Thiscertificate must state that either: (a) as set out in paragraph60I(8)(a), the applicant did not attend family dispute resolutiondue to the refusal or failure of the other party or parties toattend the process; or (b) as set out in paragraph 60I(8)(aa), thefamily dispute resolution practitioner considers, having regard tothe matters prescribed by the Regulations, that it would not beappropriate to conduct the proposed family dispute resolution; or(c) as set out in paragraph 60I(8)(b), the applicant attendedfamily dispute resolution, conducted by the practitioner, with theother party or parties to the proceedings, at which they discussedand made a genuine effort to resolve the issue or issues to whichthe court application relates; or (d) as set out in paragraph60I(8)(c), the applicant attended family dispute resolution,conducted by the practitioner, with the other party or parties tothe proceedings, but that the applicant, the other party or anotherof the parties did not make a genuine effort to resolve the issueor issues. For example, a party who sits through a mediationwithout making an effort to engage with the mediator or otherparty.
95. Thecertificate provided for in paragraph 60I(8)(aa) is needed toaccommodate the existing requirement, imposed on mediatorsunderregulation 62 of the Family Law Regulations 1984 (the Regulations), to determine whether mediation is appropriate inthe circ*mstances of the individual case. In determining thismatter, the mediator must consider whether the ability of any partyto negotiate freely is affected by issues such as a history offamily violence, the likely safety of the parties, or the risk thata child may suffer abuse. It is envisaged that the regulationto be made for the purposes of paragraph 60I(8)(aa) will largelyreproduce the factors currently set out in regulation 62.
96. Withoutthe ability to issue a certificate as specified in paragraph60I(8)(aa) the dispute resolution practitioner would be prevented,both legally and ethically, from conducting the dispute resolution,but would be unable to issue a certificate to allow the parties toproceed to court.
97. Attendanceat family dispute resolution is not required in a number ofinstances, which are set out in subsection 60I(9). Theseexceptions are intended to ensure that people will not be requiredto attend family dispute resolution in circ*mstances that areinappropriate.
Consentorders
98. Subparagraph 60I(9)(a)(i) provides that family dispute resolutionis not required where a consent order is being sought. Thisis appropriate as it will mean that people who can reach agreementwithout assistance will not have to use the dispute resolutionservices if they do not require them.
Applicationis in response to application of another party
99. Subparagraph 60I(9)(a)(ii) provides that a certificate will alsonot be required where an application is being made in response to aPart VII application that another party has already made in theproceedings. This is to ensure that parties are not requiredto attend family dispute resolution in circ*mstances where anapplication is made for procedural or interim orders while the mainproceedings are on foot. These parties would already havegenerally attended family dispute resolution.
Familyviolence or child abuse
100. As set outin paragraph 60I(9)(b), attendance at family dispute resolution isnot required where the court is satisfied that there are reasonablegrounds to believe that there has been or would be a risk of abuseof 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 oneof the parties to the proceedings.
101. ‘Abuse’ in relation to a child and ‘familyviolence’ are already defined in section 4 of the Act whichis the section that sets out the definitions for Part VII of theAct. The exceptions in paragraph 60I(9)(b) are intended toprotect those people who would be at immediate risk of violence andabuse if there were to be a delay in attending court. Thestandard of proof required is an objective test. This means,for example, that it is not sufficient for the court to besatisfied that a party believes that there would be a risk offamily violence if there were to be a delay in applying for theorder. Rather, the court must be satisfied that there arereasonable grounds for this belief on an objective basis.
Contravention within 12 months
102. Paragraph60I(9)(c) excludes participation in family dispute resolution incirc*mstances where a Part VII order relating to an issue in acurrent contravention application is made within the 12 monthsbefore the application and the court is satisfied on reasonablegrounds that a person has shown serious disregard for his or herobligations under that order. This is an objectivetest. This partially implements recommendation 23 of the LACAReport as the Committee thought that 6 months was too short aperiod.
103. If thecontravention relates to orders made over one year ago it is morelikely that the issue can be resolved outside of the court systemand attendance at a dispute resolution provider would be morevaluable. It would be unreasonable to delay the court’sconsideration of a contravention order, where the contravention isaffecting the original order made relatively recently by the courtas the parties would have had to go through dispute resolutionoptions prior to obtaining the initial orders . This isalso an exception from dispute resolution in the pre-actionprocedures of the Family Law Rules 2004 (Rule1.05(2)).
Urgency
104. Paragraph60I(9)(d) provides that participating in family dispute resolutionis not required if the application is made in circ*mstances ofurgency. For example, this may cover an application which isurgent because of an immediate need to protect a child fromphysical harm or danger, or an urgent order for the location andrecovery of a child, including cases of child abduction. Thisis also an exception from dispute resolution in the pre-actionprocedures of the Family Law Rules 2004 (Rule 1.05 (2)).
Unable to participate effectively
105. Paragraph60I(9)(e) excludes a party who is unable to participate effectivelyin family dispute resolution. ‘Unable’ isintended to cover a limited set of circ*mstances of incapacity orphysical remoteness and other such reasons. Examples of suchsituations include a person being intellectually impaired, a personaddicted to drugs in such a manner that makes them unable toparticipate in family dispute resolution in a normal capacity, orcirc*mstances of geographical distance where attendance bytelephone is not feasible (eg due to hearing loss). A tollfree national telephone advice line staffed by qualifiedprofessionals and a new website will be available to assistfamilies with information or advice on relationship, parenting orseparation issues and also with referrals to other services thatcan help. The advice line and website will assist familiesacross Australia, including those who do not feel comfortable goinginto or cannot easily access a Family Relationship Centre, to gethelpful information and advice.
106. Paragraph60I(9)(f) provides a mechanism for further additions to be added tothis list of exceptions as the need for further exceptions becomesrecognised, and enables this to be done through the Family LawRegulations 1984 . This allows flexibility to respond toissues that may arise in the implementation of these significantchanges to the family law system. The exceptions tocompulsory dispute resolution do not prevent people who wish to usethese services of utilising them prior to making an application fora court order.
Compliance
107. If aperson does not attend family dispute resolution in accordance withthis new section 60I before applying for a Part VII order, forwhatever reason, subsection 60I(10) provides that the court mustconsider making an order that the person attend such aprocess. Any such decision will be made at the discretion ofthe court. For example, if the applicant has claimed that theapplication was urgent under the exception in paragraph 60I(9)(d),but the court considers that it was not urgent, it may make anorder that the parties must attend family dispute resolution beforethe court will deal with the matter. The court could alsoorder costs in appropriate cases. This will discourageparties from trying to avoid the provisions and will ensure thatthe court considers the reasons for exemption.
108. Subsection60I(10) will also allow the court, in appropriate cases, to send aparty to a specific program even if he or she has met an exceptionwhere the court considers that the program will bebeneficial. This is consistent with the overall shift toensure that all matters that can be resolved outside the courtsystem are.
Validity ofproceedings
109. Subsection60I(11) provides that the validity of proceedings for a Part VIIorder and any order made pursuant to those proceedings is notaffected by a failure to comply with the requirement to attendfamily dispute resolution in subsection 60I(7). This willprevent technical defects after the court has already consideredthe case. This is appropriate if parties have already gone tothe trouble and expense of having a matter heard.
Definition of ‘dispute resolutionprovisions’
110. Newsubsection 60I(12) includes a definition for the term‘dispute resolution provisions’ that is used in section60I for Phase 1 of the provisions, which links back to the existingFamily Law Rules that will now apply to all courts exercisingfamily law jurisdiction due to the operation of subparagraph60I(3).
Requirement to see a family counsellor orfamily dispute resolution practitioner in the case of child abuse or familyviolence
111. Item 11also inserts a new section 60J as part of the new Subdivision E ofDivision 1 of PartVII of the Act. New Subdivision Edeals with family dispute resolution and family counselling.The purpose of subsection 60J(1) is to ensure that people who arenot required to attend family dispute resolution where there hasbeen child abuse or family violence by one of the parties to theproceedings, obtain information about the services and options thatare available to them. This will ensure that people are madeaware of services and options (including alternatives to courtaction) that are available in circ*mstances of abuse orviolence.
112. To avoidundue delay to people seeking to rely on the family violence orchild abuse exceptions to family dispute resolution and make theprocess less bureaucratic, the information will be made availableby family counsellors and family dispute resolutionpractitioners. An applicant for a Part VII order willbe required to indicate in writing whether they have or have notreceived the information.
113. Newsubsection 60J(2) provides an exception to the requirement insection 60J(1) where there is a risk of child abuse or familyviolence if the matter is delayed getting to court. While theintention of section60J(1) is to ensure that victims ofviolence have information on the services available to them, theexception is to ensure that those matters involving high risk ofimmediate violence or abuse are heard by the court as soon aspossible.
114. Newsubsection 60J(3) provides that the validity of proceedings for aPart VII order and any order made pursuant to those proceedings isnot affected by a failure to comply with the requirement to file acertificate in accordance with subsection 60J(1).
115. Newsubsection 60J(4) provides if a person indicates that they have notreceived the information about the other services and optionsavailable in circ*mstance of abuse or violence and the subsection60J(2) does not apply, the principal executive officer of therelevant court must ensure that the person is referred to a familycounsellor or family dispute resolution practitioner to obtain theinformation.
Section 60K- Court to take prompt action in relation to allegations of childabuse or family violence
116. Item 11also inserts a new section 60K as part of the new Subdivision E ofDivision 1 of PartVII of the Act. New Subdivision Edeals with family dispute resolution and family counselling.Section 60K requires the court to take prompt action in relation toallegations of child abuse or family violence (particularly as thisforms an exception to attendance at dispute resolution). This is an important provision as where issues of violence andabuse are raised there is a process in place to ensure that therewill be adequate information provided to the court so that it canmake appropriate orders and so that necessary steps can be taken toensure appropriate protections are in place.
117. Subsection60K(1) sets out when the section applies. It applies where anapplication is made to a court for a Part VII order in relation toa child and a document prescribed by the applicable Rules of Courtis filed alleging that there has been abuse of a child or familyviolence by one of the parties or would be a risk of abuse of achild or family violence by one of the parties if there were adelay in applying for the order. This provision recognisesthe need for any necessary protection issues to be addressed in atimely matter. It also allows the court to ensure it willhave appropriate information about the allegations. The provisionwill not apply where the allegation of violence or abuse is notrelevant to whether the court should grant or refuse theapplication. That is, there must be a nexus between theallegation that is made and the orders that are sought. Thisrequirement for a nexus is based on provisions in the UK‘Guidelines for Good Practice on Parental Contact in Caseswhere there is Domestic Violence’.
118. Use of aprescribed form to identify the allegation will make identificationof relevant cases to which timeframes may apply by counter staffwithin the courts straightforward. This addresses concernsthat were raised about the difficulties for counter staff in courtsto identify which proceedings timeframes would apply to. Theform will make clear the allegation made and the relationship tothe orders sought.
119. In thesecirc*mstances, subsection 60K(2) provides that the court mustconsider what interim or procedural orders (if any) should be madeto enable appropriate evidence about the allegation to be obtainedas expeditiously as possible and to protect the child or any of theparties to the proceedings. The court must make the orders itconsiders appropriate and deal with the issues raised by theallegation as expeditiously as possible. Subsection 60K(2A)requires the court to make any appropriate orders as soon aspracticable and, where appropriate having regard to the case,within 8 weeks.
120. The typeof order that is envisaged includes interim or procedural orders toensure that appropriate information is before the court. Thismay include orders for a matter to be referred to a State andTerritory agency or that a State or Territory agency provideinformation or reports. It may also include orders that aFamily Report be prepared or an independent children’s lawyerfor the child be appointed.
121. Subsection60K(3) provides that when considering what order (if any) should bemade under paragraph 60K(2)(b) to enable appropriate evidence aboutthe allegation to be obtained as expeditiously as possible, one ofthe matters the court must consider is whether it should makeorders under new section 69ZW to obtain reports from State andTerritory agencies in relation to the allegations. Section69ZW is a new section inserted by Schedule 3 which allows the courtto make an order requiring a prescribed State or Territoryorganisation to provide the court with documents or information itmay have about notifications and investigations of child abuse orfamily violence affecting the child. The types oforganisations that would be prescribed would include those thathave investigative power into family violence and abuse issues,such as child protection agencies and police departments.
122. Theintention is to ensure that the court has as much relevantinformation as possible when making a determination about what isin the best interests of the child. Subsection 60K(3) doesnot limit subparagraph 60K(2)(a)(i) and the court may make otherorders under that subparagraph as it considers appropriate.
123. Subsection60K(4) provides that when considering what order (if any) should bemade under subparagraph 60K(2)(a)(ii) to protect the child or anyof the parties to the proceedings, the court must consider whetherorders should be made or an injunction granted under section68B. Section 68B sets out the types of orders and injunctionsthe court may make for the welfare of a child. Subsection60K(4) does not limit subparagraph 60K(2)(a)(ii) and the court maymake other orders under that subparagraph as it considersappropriate.
124. Newsubsection 60K(5) puts beyond doubt that any orders made by thecourt in relation to allegations of family violence and child abusewill be valid even if, for example, they are outside of the 8 weektimeframe.
Item 12 - At the end of subsection61C(1)
125. Item 12contains a series of notes to be included at the end of subsection61C(1). Subsection61C(1) states that in the absence ofcourt orders each parent of a child who is not 18 has parentalresponsibility for the child. The notes are to assist inclarifying the meaning of the section and to act as signpostsdirecting the reader to the various relevant provisions in theAct. For example, note 1 directs readers to subsections61C(3) and 61D(2) for the effect of a parenting order.
126. Note 2directs readers to section 61DA for the presumption that the courtapplies when making a parenting order. Note 3 directs readersto section 63C in relation to parenting plans. The noteshighlight the difference between parental responsibility in caseswhere there are no parenting orders and in cases where parentingorders are required.
Item 13- After section 61D
127. Item 13inserts new provisions relating to a presumption, or startingpoint, about equal shared parental responsibility when making aparenting order. The new provisions can be distinguished fromthe principle of parental responsibility set out in section 61Cwhich applies where there are no parenting orders. The newprovisions implement recommendations 1 and 2 of the FCAC Report andrecommendations 1 and 3 of the LACA Report.
128. TheGovernment considers that it is important to ensure that a childhas a meaningful relationship with both parents and that bothparents participate in decisions about the child. Thepresumption of equal shared parental responsibility is not apresumption of 50:50 joint custody. The presumption relatessolely to the decision making responsibilities of bothparents. New section 65DAA inserted by item 31 is theprovision dealing with the time a child spends with each parent andthe circ*mstances where the court should consider equal timearrangements.
129. Newsection 61DA, applies to a court making a parenting order.The presumption provides that it is in the best interests of thechild that the parents share equally the parental responsibilityfor the child. The provision is intended to promote decisionmaking about major long-term issues by both parents, for thebenefit of the child.
130. The noteafter section 61DA aims to assist readers and, in particular,self-represented litigants, by highlighting that the presumption ofequal shared parental responsibility relates solely to the decisionmaking responsibilities of both parents and does not relate to theamount of time the child spends with each parent.
131. Newsubsection 61DA(2) states that the presumption will not apply ifthe court reasonably believes that a parent of a child, or a personwho lives with a parent of the child, has engaged in familyviolence or abuse of the child (or another child who is a member ofthe parent’s family). The extension of this provisionto a person who lives with a parent is intended to address concernsabout the impact that violence and abuse in the home of eitherparent can have on the child and on the ability to exercise thejoint decision making requirement of equal shared parentalresponsibility.
132. Theprovision is limited to a parent who has committed abuse of thechild (or a child who is a member of the parent’s family) soas not to exclude a parent who had committed sexual assault againstsome other person at an earlier stage from participating indecision making. Where there may be risks to the child, thepresumption can be rebutted under new subsection 61DA(4).
133. Newsubsection 61DA(3) provides that the presumption of equal sharedparental responsibility will apply at an interim hearing, unlessthe court considers that it is inappropriate for the presumption toapply. This implements recommendation 15 of the LACAReport. This discretion is appropriate given the limitedevidence that may be available for interim hearings.
135. Newsection 61DB provides that, when making a final parenting order,the court must disregard the allocation of parental responsibilityestablished after an interim hearing. The purpose of thisprovision is to address concerns about the potential difficulty ofdisplacing a status quo related to parental responsibility that maybe established at an interim hearing. This implementsrecommendation 15 of the LACA Report.
136. Theprovision is not intended to prevent the court from taking intoconsideration any of the evidence on which the interim parentingorders were based. Under section 60CA the court must regardthe best interests of the child as the paramount consideration indeciding whether to make a particular parenting order in relationto a child.
137. ‘Family violence’ and ‘abuse’ in relationto a child are already defined in section 60D of the existing Actwhich is the definitions section for Part VII. Theseprovisions are moved to the general definitions section insubsection 4(1). The family violence definition is amended byitem 3 to include the concept of‘reasonableness’. This implements recommendation9 of the LACA Report.
Item 14 - At the end of Division 2 ofPart VII
138. Item 14inserts new section 61F into the Act. It provides that, inapplying Part VII to the circ*mstances of an Aboriginal or TorresStrait Islander child or identifying a person/s that has or mayexercise parental responsibility for such a child, the court musthave regard to any kinship obligations and child-rearing practicesof Aboriginal and Torres Strait Islander culture that are relevantto the child. The definitions of the terms ‘Aboriginalchild’, ‘Torres Strait Islander child’ and‘Aboriginal or Torres Strait Islander culture’, areinserted into the general dictionary in subsection 4(1) of the Actby items 1, 2 and 6 of Schedule 1.
139. Newsection 61F implements recommendation 1 of the Family LawCouncil’s December 2004 Report, Recognition of TraditionalAboriginal and Torres Strait Islander Child-RearingPractices: Response to Recommendation 22: Pathways Report, Out ofthe Maze . The purpose of this provision is to ensure thatthe unique kinship obligations and child-rearing practices (such asthe involvement of extended family) of Aboriginal and Torres StraitIslander culture are recognised by the court when making decisionsabout the parenting of an Aboriginal or Torres Strait Islanderchild. This provision is consistent with other amendments tofacilitate greater involvement of extended family members in thelives of children.
Item 15- After subsection 62G(3)
140. Item 15inserts two new subsections into section 62G. This providesfor the court to direct a family consultant or welfare officer togive the court a report on matters relevant to theproceedings. Family consultant is defined in Schedule 4.
141. Newsubsection 62G(3A) provides that a family consultant or welfareofficer who is directed to give the court a report on a matter mustascertain the views of the child in relation to the matter andinclude the views of the child in the report. New subsection62G(3B) provides that subsection 62G(3A) does not apply if it wouldbe inappropriate to do so because of the child’s age ormaturity or some other special circ*mstance. For example, ifthe child has a disability which makes them unable to express aview, or is a baby.
142. Theintention is to ensure that, where possible, the court is informedabout the views of the child on matters to which a parenting orderrelates. The child’s views are a factor a court is toconsider when determining what is in the child’s bestinterests under section 60CC. This implements recommendation42 of the LACA Committee. The note following this provisionmakes clear that the requirement to seek the views of achild issubject to section 68H which makes clear that a child cannot beforced to give a view.
Item 16- After paragraph 63C(1)(b)
143. Item 16amends subsection 63C(1) which defines what a parenting planis. Under the existing Act, a parenting plan is a writtenagreement made between the parents of a child dealing with theissues set out in section 63C(2). The amendment adds twoadditional requirements to what will constitute a parentingplan.
144. Paragraph63C(1)(ba) requires the parenting plan to be signed by the parentsof the child. Paragraph 63C(1)(bb) requires the parentingplan to be dated. This is appropriate given that under newsection 64D (inserted by item 25) a parenting plan entered intoafter a parenting order is made may render the parenting orderunenforceable. The requirement to sign and date a parentingplan will emphasise the significance of the document. Thispartially implements recommendation 33 of the LACACommittee.
145. Paragraph63DA(2)(d) inserted by item 18 ensures that people are advisedabout the effect of entering into a parenting plan when they areusing the services of an adviser.
Item 16A - After subsection 63C(1)
146. Item 16Ainserts a new subsection into section 63C. This section setsout what constitutes a parenting plan for the purposes of theAct. New subsection 63C(1A) provides that to be a parentingplan for the purposes of the Act, the plan must be made free fromany threat, duress or coercion. Arguably, it is implicit thatthe court would read this into the existing provisions as acondition of agreement. However, it is useful for readers,particularly for self represented litigants, to make thisexplicit.
Item 17- Subsection 63C(2)
147. Section63C deals with the meaning of parenting plans. Item 17facilitates the removal of the terms ‘residence’ and‘contact’ from the Act by replacing the currentsubsection 63C(2), which specifies that residence and contactbetween the child and the parent is one of the matters that aparenting plan may deal with.
148. Item 17inserts a new subsection 63C(2), which sets out the details of whatissues a parenting plan may deal with. This includes withwhom a child is to live, the time a child is to spend with anominated person or persons, the allocation of parentalresponsibility (including decisions about major long-term issues inrelation to a child - see subsection (2B)), thecommunications a child is to have with a nominated person orpersons (see subsection (2C)), child maintenance, the form ofconsultations about parental decisions and any other aspect of thecare, welfare or development of the child.
149. Inparticular, new paragraphs 63C(2)(g) and (h) provide that aparenting plan may deal with the process for resolving disputesabout the terms or operation of the plan and the process to be usedfor changing the plan. The intention of these paragraphs isto ensure that parents consider the changing needs of their childor children as they get older and to work an element of flexibilityinto the plan. The aim of these paragraphs is to attain agreater level of compliance with parenting plans.
150. The notein subsection 63C(2) is designed to assist those using the Act, inparticular, self-represented litigants, who may not otherwisebe aware that this provision only relates to the maintenance of achild where the Child Support (Assessment) Act 1989 does notapply. The note explains that a parenting plan that dealswith child maintenance in circ*mstances where the child supportprovisions of the Child Support (Assessment) Act 1989 apply,has no effect (see subsection 63G(5) of the Act) unless it is achild support agreement for the purposes of the child supportlegislation (see section 63CAA of the Act).
151. Item 17also gives greater recognition to the important role thatgrandparents and other relatives play in a child’slife. In particular, subsection 63C(2A) specifically providesthat a parenting plan may provide for a child spending time with orcommunicating with the grandparent or other relative of achild. This change is consistent with the amendments torecognise the need to consider the benefit to the child of greaterinvolvement of extended family members.
152. Subsection63C(2B) clarifies that a parenting plan may deal with theallocation of parental responsibility for making decisions aboutmajor long-term issues in relation to a child. The definitionof ‘major-long term issues’ is inserted into section60D(1) by item 4.
153. Theaddition of subsection 63C(2C) provides greater clarity about what‘other communication’ means in paragraph63C(2)(e). The two examples it gives, which are examples onlyand do not limit the scope of ‘other communication’,are letters and telephone, email or any other electronicmeans. The intention is for parents to consider a variety ofways by which they can have a meaningful involvement in theirchildren’s lives, not just physical time with a child.This might include SMS, video hook-ups or attending sporting orsocial events their child is involved in.
Item 18- Section 63DA
154. Item 18replaces the existing section 63DA. It sets out theobligations of advisors (ie. legal practitioners, familycounsellors, family dispute resolution practitioners and familyconsultants) when giving advice to people in relation to parentingplans. It aims to assist people making parenting plans tounderstand what the plan may include, the effect of the plan andthe availability of programs to assist people who experiencedifficulties with their agreements or who need to negotiate achange in an agreement. This is a key provision and ensuresthat people are well informed and supported towards making anagreement about post-separation parenting. It isintended that as part of the package of reforms to the family lawsystem that brochures and information materials will bedeveloped. These will present the information required to beprovided in a simple and easily understood form. This willassist advisers in fulfilling their obligations under thisprovision.
155. Ensuringthat people are appropriately informed about parenting plans ispart of the cultural shift to have cooperative, child-focussedparenting take place outside of the adversarial court system.It will be important to ensure that parents understand that theparenting plan is not enforceable but that if the agreement laterbreaks down it might be relevant to court orders. It willalso be important that parents understand that the effect of aparenting plan made after court orders may be that formal courtorders will be subject to the later parenting plan. This isdue to the operation of new subsection 64D inserted by item25.
156. Newsubsection 63DA(1) places an obligation on advisors assisting oradvising people about parental responsibility following thebreakdown of a relationship to inform them that they could considerentering into a parenting plan and the services available wherethey can get further assistance to develop a plan. This willmake people aware of the option and the advantages to each party ofa cooperative approach.
157. Newsubsection 63DA(2) sets out the obligations that advisers must meetwhen advising people about the making of a parentingplan.
158. Paragraph63DA(2)(a) places an obligation on advisors to inform people that,where it is in the best interests of the child and reasonablypracticable, they could consider as an option an arrangement wherethey equally share the time spent with the child. Equal timearrangements are most likely to work in situations where there is ahigh degree of cooperation between the parents.
159. Paragraph63DA(2)(b) places an obligation on advisers to inform the peoplethat if an equal time arrangement is not appropriate, they couldconsider whether an arrangement where the child spends substantialand significant time with each person would be in the bestinterests of the child and reasonably practicable. Subsection63DA(4) makes it clear what substantial and significant time meansand that it includes a variety of days including days that fall on weekends and holidaysand other days. It ensures that both parents canparticipate in a child’s routine and in events ofsignificance to the child such as sporting events, birthdays, orconcerts. It would also ensure that the child is able toparticipate in events significant to the parents such as birthdaysor father’s or mother’s day.
160. Paragraph 63DA(2)(c) emphasises that decisions made by parties indeveloping parenting plans should be made in the best interests ofthe child. In this context the term should not be read in atechnical way. The mediator doesn’t have to considerevery aspect of the legal considerations that the court mustconsider. This isconsistent with recommendation 6 of the LACA Report.
161. Paragraph63DA(2)(d) ensures that when giving advice to people about aparenting plan, advisors inform them of the matters that may bedealt with in a parenting plan in accordance with subsection63C(2). As noted above at item 17, section 63C(2) sets out theissues a parenting plan may deal with. For example,with whom a child is to live, the time a child is to spend with anominated person or persons, the allocation of parentalresponsibility and the process for resolving disputes about theplan.
162. Newparagraphs 63DA(2)(e) and 63DA(2)(h) ensure that advisors explainthe interaction betweenparenting plans and parenting orders. Subparagraph 63DA(2)(e) requires advisors to inform their clients that anexisting parenting order may be subject to a parenting plan thatthey subsequently enter into. This is due to the operation of new subsection 64Dinserted by item 25. Advisors must also inform theirclients that the court is required (in section 65DAB at item 31) toconsider the terms of the most recent parenting plan about a childwhen making a parenting order about that child, if it is in thebest interests of the child to do so.
163. Newparagraph 63DA(2)(f) requires advisors to inform their clients thatit is desirable toinclude in a parenting plan provisions of the kind referred toin paragraphs 63C(2)(d), (g) and (h). These paragraphsdeal, respectively, with the form of consultations between theparties to the plan, the process for resolving disputes about theterms or operation of the plan and the process to be used forchanging the plan. The intention of these paragraphs is tohelp people avoid having to take parenting matters to court byensuring that when making a plan, they consider how they willconsult with one another, resolve disputes and make changes to theplan as their child grows older and their needs change.
164. Newparagraph 63DA(2)(g) requires advisors to explain to their clientswhat programs areavailable to help people who experience difficulties in complying with parenting plans.
165. The noteat the end of subsection 63DA(2) makes clear that an adviser mustonly inform people that they could consider the options of thechild spending equal time and substantial and significant time witheach person. It does not require the adviser to providelegal advice as to whether such arrangements are practicableor in the best interests of the child. However, the advisermay provide advice if that is appropriate.
166. New subsections 63DA(3)and (4) explain what is meant by substantial and significanttime. It ensures that the focus is not just on the amount oftime that each parent spends with the child but also on the type oftime that is spent. The definition is to encourage people toensure that there is a mix of holidays, weekends and other days andthat both parents are able to participate in the child’sdaily routine and in events that are significant to the child (likesporting events, birthdays and concerts). It also ensuresthat the child is able to participate in events significant to theparent such as mother’s or father’s day, extendedfamily weddings or christenings and birthdays.
167. Newsubsection 63DA(5) provides that for the purposes of thisparticular section,‘adviser’ means a person who is a legal practitioner, afamily counsellor, a family dispute resolution practitioner,or a family consultant.
168. It isenvisaged that the information relating to parenting plans thatadvisers are required to provide under this section could beprovided in written form such asbrochures.
Item19- Paragraph 63E(3)(b)
169. Item 19amends paragraph 63E(3)(b) of the Act. Section 63E concernsthe registration and revocation of parenting plans. Thesystem for the registration of parenting plans was removed in2003 by the Family Law Amendment Act 2003. The amendment to paragraph63E(3)(b) is to refer tosubsections 60CC(2) and (3), rather than subsection68F(2)about best interests. This is a consequential amendment thatreflects section 60CC at item 9, which sets out the primary andadditional considerations for the court in determining achild’s best interests.
Item 20- Subsection 63F(6) (note)
170. Item 20 isa consequential amendment to the note at the end of the provisions about the enforcementof child welfare provisions in parenting plans. Thisis necessary as the provisions relating to the bestinterests of the child have moved from subsection 68F(2) to section60CC by item 9.
Item 21- Subsection 63H(2) (note)
171. Item 21 is a consequential amendment to the note at the end of theprovisions about the courts powers to discharge or vary registeredparenting plans. This is necessary as the provisions relatingto the best interests of the child have moved from subsection 68F(2) tosection 60CC by item 9.
Item 22- Subsection 64B(2) to (4)
172. Item 22repeals and replaces subsection 64B(2), which currently specifiescontact 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 ‘contactorder’. These terminology changes are necessary dueto the removal from the Act of references to contact,residence and specific issues orders. This is consistent withrecommendation 4 of the FCACReport that this terminology beremoved from the Act.
173. Newsubsection 64B(2) provides greater detail and clarity about thematters that a parenting order can deal with. These mattersinclude who a child is to live with, the time and othercommunications 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 withone another. In particular, paragraph 64B(2)(g) provides thata parenting order may deal with the steps that should be takenbefore an application is made to a court for a variation of theorder. Paragraph 64B(2)(h) provides that a parenting ordermay deal with the process to be used for resolving disputes aboutthe terms or operation of the order. The aim is to ensureorders are appropriately framed and flexible to reduce the need forpeople to go to court about the operation or variation of parentingorders.
174. Newsubsection 64B(3) clarifies that a parenting order dealing with theallocation of parental responsibility under paragraph 64B(2)(c) maydeal with the allocation of responsibility for making decisionsabout major long-term issues in relation to thechild. Major long term issues are defined in item4. This provision is not intended to limit othermatters that paragraph 64B(2)(c) may cover.
175. Newsubsection 64B(4) sets out what the reference to othercommunications in paragraph 64B(2)(e) includes. This isdrafted broadly and is intended to cover new technologies broughtabout by, for example, the internet, mobile phones and otherelectronic devices.
176. Newsubsection 64B(4A) provides that an option under paragraphs64B(2)(g) and (h), is for a parenting order to require people toconsult with a family dispute resolution practitioner to assistwith resolving any dispute about the terms or operation of theorder or about coming to agreement about changing the order.This subsection is not intended to limit other matters thatparagraphs 64B(2)(g) and (h) may cover.
177. Item 22gives greater recognition to the important role that grandparentsand other relatives play in a child’s life and to thebenefits to a child of continued contact with these significantpeople. In particular, subsection 64B(2) specificallyprovides that a parenting order may provide for a child spendingtime with or communicating with the grandparent or other relativeof a child. This change is consistent with the amendments tofacilitate greater involvement of extended family members in thelives of children.
Item 23 - Subsection 64B(5)
178. Item 23amends subsection 64B(5) of the Act. Subsection 64B(5)explains what constitutes a child maintenance order. Theamendment is to refer to paragraph 64B(2)(f) rather than paragraph64B(2)(c). This is a consequential amendment which reflectsthe inclusion of additional matters in subsection 64B(2) which setsout the matters a parenting order may deal with.
Item 24- Subsections 64B(6) to(8)
179. Item 24repeals the current subsection 64B(6) in the Act, which providesfor what are called ‘specific issues orders’.This is a subsequent amendment to the removal of the terminology ofresidence and contact. As references to residence and contactorders are repealed, so too are references to specific issuesorders. Instead, there is a more generic approach toparenting orders. Specific issues orders are replaced withparenting orders dealing with allocation of parental responsibilityand components of parental responsibility. The new subsection64B(6) describes the types of parenting orders that can be made infavour of a person.
180. Item 24also repeals subsection 64B(7), which describes whom a residence,contact or specific issues order is made in favour of. Thedefinition is no longer required as the terminology of the Act isupdated by replacing the references to a residence order, a contactorder and a specific issues order with references to parentingorders that provide with whom a child is to live, spend time,communicate or that allocate parental responsibility or a componentof parental responsibility.
181. Item 24also repeals subsection 64B(8), which defines ‘has’ inrelation to residence, contact and specific issues orders.This terminology is no longer relevant.
Item 25 - At the end of Division 5 ofPart VII
182. Item 25inserts a new section 64D into Division 5. Section 64Dinserts a default provision into parenting orders that are madeafter the commencement of this Bill. The default provisionhas the effect that those parenting orders will be subject to anysubsequent parenting plan. This will only be the case where theparenting plan is agreed to in writing by any other person to whomthe parenting order applies.
183. There isdiscretion for the court not to include the default provision inthe parenting order in ‘exceptionalcirc*mstances’. Subsection 64D(3) clarifies whatexceptional circ*mstances means. This is to address concernsthat the term could be interpreted too narrowly so that it onlyapplies very rarely and that this could undermine the principle ofthe best interests of the child being the paramountconsideration.
184. TheGovernment intends ‘exceptional’ to includecirc*mstances where the court considers that there is:
· a need to protect the child from physical or psychological harmfrom being subjected to, or exposed to, abuse, neglect, or familyviolence, or
· substantial evidence that one parent is likely to seek to coerce oruse duress to gain the agreement of the other parent.
185. Thisensures that it is clear that ‘exceptional’ coverscirc*mstances where there is concern about risks to the child orwhere there is a risk that a parent could seek to avoid parentingorders being enforceable by pressuring the other party to agree toa parenting plan. For example, a court may consider it is inthe best interests of a child to reside with his or hergrandparents, as both parents have substance abuse issues.The court may exercise its discretion to make an order that canonly be changed by the subsequent order of the court and not by asubsequent parenting plan. The court may do so due toconcerns that the parents may attempt to use a parenting plan tooverride the court order and provide for the child to live withthem, rather than the grandparents and that this would place thechild at risk of harm. It is appropriate for the court tohave this discretion in order to ensure that the best interests ofthe child remain paramount.
186. Therequirement that this be limited to exceptional cases implementsthe LACA Committee recommendation 34. This reflects a desirethat generally people should be encouraged to vary existingparenting orders by agreement using the new services that will beavailable.
187. Section64D does not mean that the parenting plan itself is enforceable(parenting plans have no legal enforceability), but it does meanthat after the commencement of this Bill, where this defaultprovision is included in the parenting order, there will no longerbe a right to enforce the previous court order to the extent thatit is inconsistent with the new parenting plan. People canonly lose the capacity to enforce their existing parenting orderwithin the court system if they agree to this in writing in aparenting plan. The insertion of paragraph 63DA(2)(d) by item18 ensures that people are advised about the effect of enteringinto a parenting plan when they are using the services of anadviser.
188. Provisionsrelating to the effect of parenting plans are also contained inSchedule 2 about contravention applications.
Item 26- Section 65A
189. This is aconsequential amendment to the provision in Subdivision A ofDivision 6 of PartVII of the Act which describes that theDivision is about parenting orders other than child maintenanceorders. The change is necessary due to the additional noteadded by Item 27 below.
Item 27 - Atthe end of section 65A
190. Section65A sets out what Division 6 of Part VII does. This Divisionis concerned with applying for parenting orders and the obligationsparenting orders create. Item 27 inserts a note to indicatethat there is a new provision in this Division, section 60I,inserted by item11 that provides that parties shouldparticipate in family dispute resolution before applying for aparenting order. This should assist in highlighting theprovisions for self-represented litigants and help make itclear that parenting orders cannot be applied for unless partieshave attempted family dispute resolution.
Item 28- Section 65AA
191. This itemrepeals the existing subsection that provides information about thethree stage parenting compliance regime. That information isno longer required due to the changes to compliance in Schedule2. A new provision is included which is a signpost back tosection60CA in Division 1 (inserted by item 9). Thissignpost makes it clear that when making parenting orders the bestinterests of the child are paramount.
Item 29- Subsection 65D(1)
192. Section65D provides the court with the necessary power to make a parentingorder. Item 29 clarifies subsection 65D(1) by inserting arequirement that, in making a parenting order, the court shouldhave regard to the presumption of equal shared parentalresponsibility and any parenting plans (sections 61DA and 65DABrespectively).
Item 30- Subsection 65D(2)
193. Section65D provides the court with the necessary power to make a parentingorder. Item 30 amends subsection 65D(2) by inserting arequirement that, in discharging, varying, suspending or reviving aparenting order, the court should have regard to the presumption ofequal shared parental responsibility and parenting plans (sections61DA and 65DAB respectively). This provides a link for thecourt with the sections relating to the presumption. It willalso aid people using the Act, in particular, self-representedlitigants in understanding the operation of the provisions.
Item 31 - After section 65D
Section 65DAA - Court to considerchild spending equal time or substantial and significant time witheach parent in certain circ*mstances
194. Section65DAA is a new provision about circ*mstances where the court is toconsider children spending either equal and if not equal thensubstantial and significant time with both a child’sparents.
195. Subsection65DAA(1) implements recommendations 4 and 5 of the LACACommittee. It provides a new requirement that the court must consider making anorder that a child spend equal time with each parent, if aparenting order provides or is to provide the parents with equalshared parental responsibility for the child. This provision is nota presumption 50:50 of joint custody. That approach wasrejected by the FCAC. The court must consider whether it is inthe best interests of the child and reasonably practicable for thechild to spend equal time with the parents.
196. Subsection65DAA(2) recognises that an equal time arrangement will not beappropriate in some cases but that the court must consider otherarrangements that promote a meaningful relationship. This provisionplaces an obligation on the court in situations where there isequal shared parental responsibility and equal time is notappropriate, to consider whether it would be in the best interestsof the child and reasonably practicable for the child to spendsubstantial and significant time with both parents. This isintended to ensure that in making parenting orders related to timethat the court focuses not just on the substantial quantity of timethat is spent with each parent, but also on the significant type oftime. The note in this section emphasises that the bestinterests of the child remain the paramount consideration forparenting orders. This is set out in section 60CA by item9.
197. Subsection65DAA(3) makes it clear that substantial and significant timerequires that the child spend both some time on weekends andholidays and some time on other days. It must also includetime in daily routine and allow for participation in events thatare significant to the child. This might include sportingevents, birthdays or concerts. It would also include thechild being able to be involved in events of significance to theparent such as family weddings or christenings, mother’s orfather’s day, birthdays.
198. Subsection65DAA(4) makes it clear that the court can have regard to otherthings when deciding what is substantial and significanttime. This will allow the court flexibility indetermining for each unique case in the best interests of the childto determine what the significant events are for that child andparent and what would constitute substantial time. For somechildren it may include things related to religious or culturalevents.
199. Section65DAA(2)-(4) is intended to ensure that the courts considerarrangements that are much more than ‘one weekend a fortnightand half of the holidays’ or an 80:20 arrangement. Itis intended to ensure a focus both on the amount of time and thetype of time. It would include both day time contact andnight time contact. It recognises that what is important isthat the focus be on ways that both parents are able to develop ameaningful relationship with their children and share importantevents including everyday time with the child. It recognisesthat in order to have a meaningful relationship and to share equalshared parental responsibility that this will generally involve‘both’ parents spending both substantial andsignificant time with their children.
200. Subsection65DAA(5) sets out factors that the court should consider indetermining whether both equal or substantial and significant timeare reasonably practicable. These factors originate from caselaw, including the case of T and N (2001) FMCAfam 222 .The inclusion of the factors was recommended by the Family LawCouncil which considered 2004 research by the Australian Instituteof Family Studies entitled, Research Report No 9: Parent-ChildContact and Post Separation Parenting Arrangements .
201. Paragraph65DAA(5)(a) provides that the court consider the proximity of theresidence of the parents. It will obviously be less practicalto share care in situations where the parents live in differentcountries or large distances away from each other.
202. Paragraph65DAA(5)(b) is the parent’s ability, including an assessmentof their future ability, to implement the logistical issuesassociated with shared care. For example, what would theparents do if the child leaves homework at one house? Willthe parents readily rectify this problem? The court maydecide to make some related orders to send the parties to a programto assist them develop or improve these skills. Note 2 to theprovision is a cross reference to this option.
203. Paragraph65DAA(5)(c) refers to the parents current and future capacity tocommunicate and resolve difficulties. This may include avariety 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 sleepingpatterns.
204. Paragraph65DAA(5)(d) ensures that there is a child focus to the decision andensures that account is taken of the child’s age, views(including factors that may have influenced those views) and thegeneral benefit to the child of this type of arrangement.
Section 65DAB -Court to have regard to parenting plans
205. Newsection 65DAB is inserted to provide that when making parentingorders the court should consider the terms of the most recentparenting plan that may have been entered into by the parents aboutthe child. The intention is that this provision will mostlybe used in situations where, prior to entering the court system,parents have agreed on a parenting plan that breaks down andparenting orders are required (because the plan itself isunenforceable). It may also be relevant, where due to theeffect of section 64D, a previous parenting order has becomeunenforceable and the parents now come before the court to seek newparenting orders.
206. Theprovision will give the court the benefit of information about thetypes of arrangements that the parents have previously consideredwhen the court is making parenting orders. The court is stillrequired to make a decision in the best interests of the child butinformation about the agreement may assist the court in consideringthe appropriate parenting orders to make. The court is notbound by any previous agreement.
Section65DAC - Effect of parenting order that provides for sharedparental responsibility
207. Newsection 65DAC provides a rule that where parental responsibility isto be shared in relation to a major long-term issue under aparenting order, this means that decisions should be madejointly. This clarifies for parents or others who may haveparental responsibility, what exercising shared parentalresponsibility actually involves. This will ensure that bothparents have a meaningful involvement in the child’slife. This does not only apply in situations where parentsare sharing exactly equal responsibility. In all cases wherethere is some sharing of responsibility then consultation, thendiscussion about major long-term issues is required for thoseparts of responsibility that are shared.
208. Newsubsection 65DAC(2) contains a note which explains that there is noneed to consult about decisions unrelated to the majorlong-term care welfare and development issues, while thechild is spending time with a particular person. This isfurther explained by section 65DAE. The intention is to makeclear that while a child is with a parent, that parent takesresponsibility for the child. This is intended to reducelitigation about minor details.
209. Newsubsection 65DAC(3) specifies that in the context of makingdecisions jointly, consultation between those persons and making agenuine effort to come to a decision is required. This willallow a party to seek to enforce a parenting order in circ*mstanceswhere there has been no genuine attempt to consult.
210. When adecision about a major long-term issue is communicated to anotherperson (who does not share parental responsibility) by a party witha share in parental responsibility, new subsection 65DAC(4)clarifies that section 65DAC does not require that person toestablish that the decision has been made jointly. Thepurpose of this section is to ensure that third parties, forexample schools, do not have to establish whether a decision hasbeen made jointly between parties.
211. Newsection 65DAC outlines the decision making responsibility when amajor long-term issue needs to be decided. These provisionsare important to give meaning to the sharing of decisions aboutlong term issues. They recognise the benefit to the childgenerally where both parents play a role in their life. Theprovisions 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 allchild-related proceedings under the Act, will assist in achievingthis aim.
Section65DAE - No need to consult on issues that are not majorlong-term issues
212. Newsection 65DAE provides a new rule that where a child is spendingtime with a person under a parenting order, there is no need toconsult about decisions that are unrelated to the major long-termcare, welfare and development issues. The note to the sectionhighlights the fact that this would include issues such as what thechild eats or wears on a particular day. This is intended toemphasise the types of decisions covered by the section and reducelevels of conflict and litigation about minor issues.
213. Section65DAE will be contestable in court. A person may disagreewith a decision that has been made by the person that the child isspending time with. For example, a parent who is spendingtime with the child feeds the child in a manner that isinconsistent with the child’s religious upbringing.Although what a child eats is not usually a major long-termissue, a child’s religious upbringing is defined as a majorlong-term issue in item 4.
214. In theevent that parties are unable to resolve this issue themselves, theparties will be required to attend family dispute resolution todiscuss the issue before an application can be made to acourt. The Government does not expect this provision to leadto an increase in litigation. The establishment of FamilyRelationship Centres and expansion of other counselling, mediationand similar services will assist parties to resolve such issuesthemselves and to reach agreement in a non-adversarial andcost-effective manner.
Item 32 - Section 65E
215. Item 32repeals the existing section 65E which provides that the court mustregard the best interests of the child as the paramountconsideration in deciding whether to make a particular parentingorder. This principle is inserted by item 9 as new section60CA in new Subdivision BA in Division 1, Part VII(Children). The intention is to increase the visibility andemphasis of this important provision. This is consistent withrecommendation 16 of the LACA Committee.
Item 33 - Paragraph 65G(2)(a)
216. Item 33removes the requirement in section 65G that grandparents and otherrelative carers must obtain a family report for the considerationof the court where an order relating to where the child lives isbeing made with the consent of all the parties to the proceedingsand that order is in favour of a person who is a grandparent or arelative. This change is made as a result of the Family LawCouncil’s Quarterly report to the Attorney-General and theFamily Law Council meeting in Hobart on 10-11 March 2005 to discussgrandparents and extended families in the family law system.
217. Removingthis requirement is consistent with the amendments to facilitategreater involvement of extended family members in the lives ofchildren and to recognise the needs of all children to maintain aconnection with their culture. It is also consistent withrecommendation 4 in the Family Law Council’s December 2004Report, Recognition of Traditional Aboriginal and Torres StraitIslander Child-Rearing Practices: Response to Recommendation 22:Pathways Report, Out of the Maze .
Item 34- Subsection 65L(2) (note)
219. Item 34 isa consequential amendment to the note after subsection65L(2). Subsection65L(2) provides that the bestinterests of the child is the paramount consideration when thecourt is considering making an order for a family and childconsultant to supervise or assist a parenting order. Thereference in the note to Division 10 is replaced with a referenceto sections 60CB to 60CG. This amendment is necessary as therelevant provisions dealing with how the court determines the bestinterests of the child have moved from Division 10 to newSubdivision BA in Division 1 of Part VII.
Item 35 - Subsection65LA(2)(note)
220. Item 35 isa consequential amendment to the note after subsection65LA(2). Subsection65LA(2) provides that the bestinterests of the child is the paramount consideration when thecourt is considering making an order for a party to attend apost-separation parenting program. The reference in thenote to Division 10 is replaced with a reference to sections 60CBto 60CG. This amendment is necessary as the relevantprovisions dealing with how the court determines the best interestsof the child have moved from Division 10 to new Subdivision BA inDivision 1 of Part VII.
Item 36 - Section 67L (note)
221. Item 36 isa consequential amendment to the note after section 67L.Section 67L provides that the best interests of the child is theparamount consideration when the court is deciding whether to makea location order in relation to a child. The reference in thenote to Division10 is replaced with a reference to sections60CB to 60CG. This amendment is necessary as the relevantprovisions dealing with how the court determines the best interestsof the child have moved from Division 10 to new Subdivision BA inDivision 1 of Part VII.
Item 37 - Section 67V (note)
222. Item 37 isa consequential amendment to the note after section 67V.Section 67V provides that the best interests of the child is theparamount consideration when the court is deciding whether to makea recovery order in relation to a child. The reference in thenote to Division 10 is replaced with a reference to sections 60CBto 60CG. This amendment is necessary as the relevantprovisions dealing with how the court determines the best interestsof the child have moved from Division 10 to new Subdivision BA inDivision 1 of Part VII.
Item 38- Subsection 67ZC(2)(note)
223. Item 38 isa consequential amendment to the note after subsection67ZC(2). Subsection67ZC(2) provides that the bestinterests of the child is the paramount consideration when thecourt is deciding whether to make an order relating to the welfareof children under subsection 67ZC(1). The reference in thenote to Division 10 is replaced with a reference to sections 60CBto 60CG. This amendment is necessary as the relevantprovisions dealing with how the court determines the best interestsof the child have moved from Division 10 to new Subdivision BA inDivision 1 of Part VII.
Item 39- Subsection 69ZH(2)
224. Item 39 isa consequential amendment to add a reference to new Subdivision BAof Division1 (which deals with how the court determines thebest interests of the child) to subsection 69ZH(2).Subsection 69ZH(2) provides information on the additionalapplication of Part VII. This amendment is necessary as therelevant provisions dealing with how the court determines the bestinterests of the child have moved from Division 10 to newSubdivision BA in Division 1 of Part VII.
Item 40- Subsection 117(1)
225. Item 40amends subsection 117(1) which states the general principle is thateach party to proceedings under the Act must bear his/her owncosts. This general principle is subject to the provisionsset out in sub-section 117(2) and section 118. The amendmentis a consequential amendment which provides that this generalprinciple is also subject to new provision section117AB.
Item 41- After section 117AA
226. Item 41inserts a new provision section 117AB after section 117 which isthe section that deals with costs. The new provision providesthat a court must order a party to pay some or all of the costs ofanother party, or other parties to the proceedings, where the courtis satisfied that that party has knowingly made a false allegationin the proceedings. This provision implements recommendation10 of the LACA Report. It attempts to address concerns thathave been expressed, in particular that allegations of familyviolence and abuse can be easily made and may be taken into accountin family law proceedings. The provision is broader thanfamily violence or abuse allegations and would apply to any falsestatement knowingly made.
227. The LACAReport noted that this approach avoids the need for separatecriminal proceedings for perjury which may not be appropriate giventhat parents need to maintain an ongoing parentingrelationship. Perjury can also be difficult to establishgiven it is a criminal process. The provision ensures amessage to the courts that a penalty should be imposed at the sametime as the court determination rather than relying on thepossibility of protracted criminal proceedings at a laterdate. The penalty does not prevent criminal prosecution inappropriate cases. The court must be satisfied on the balanceof the probabilities that a party has knowingly made a falseallegation.
Part 2- Application of Amendments
228. Schedule1, Part 2 provides transitional arrangements for commencement ofthe provisions where required.
Item 42- Definitions
229. This iteminserts definitions to be applied in the interpretation of thetransitional provisions related to Schedule 1. This makes theprovisions easier to understand. Definitions are provided for‘commencement’, and the terms ‘old Act’ and‘new Act’. This allows a distinction to be madeabout what provisions operate before and after this Schedulecommences.
Item 43 -Application
230. Paragraph(1) is a transitional arrangement to make clear that the newprovisions about the best interest requirements does not apply toproceedings that have been initiated prior to commencement of theSchedule. This is because the new primary and secondaryfactors will significantly change the type of evidence the partiesmay need to bring to the court and the way cases arepresented. Without this provision, there may be significantcosts to parties who are part way through a proceeding.
231. Paragraph(2) provides that items 13, 29 and 30, which explain how parentalresponsibility provisions apply, will apply to parenting ordersmade in proceedings initiated after commencement. This limitsthe application of those provisions.
232. Paragraph(3) provides that item 14, which takes into account a newconsideration of Aboriginal kinship and child rearing practice,will apply whether or not the proceedings were initiated beforecommencement. It is not considered that any party would bedisadvantaged by this provision applying to existing proceedings ascourts would be likely to have considered such issues anyway.
233. Paragraph(4) states that the amendment made by item 15 (a family consultantwho is directed to give a report under subsection 62G(5)) appliesto directions given under that subsection on or aftercommencement. This will not be unfair in existing proceedingsas the court will be able to take any issues into account whendeciding if to make a direction.
234. Paragraph(5) provides that the new requirements that parenting plans besigned and dated and free from threat, duress or coercion insertedby items 16 and 16A only apply to parenting plans made on or aftercommencement.
235. Paragraph(6) provides that item 22, which states what a parenting order maydeal with, also applies to parenting orders made in proceedingsinitiated on or after commencement.
236. Paragraph(7) provides that item 25, which inserts a new provision intoparenting orders that makes it clear that subsequent parentingplans make them unenforceable, applies to parenting plans made onor after commencement. This will include a parenting orderthat varies an earlier parenting order, whether the earlierparenting order was made before or after commencement.
237. Paragraph(8) provides that the changes made by the insertion of provisionsrequiring the court to consider equal time arrangements, to haveregard to subsequent parenting plans and the effect of parentingorders providing for parental responsibility, only apply toparenting orders made in proceedings initiated on or aftercommencement. They do not apply to proceedings alreadyinitiated.
238. Paragraph(9) ensures that the change to subsection 65G(1) to limit therequirement for a family report in certain circ*mstances, willapply to all proceedings including those initiated prior tocommencement. It is not considered that any party would bedisadvantaged by this provision applying to existingproceedings.
SCHEDULE 2 - COMPLIANCE REGIME
Part 1 - Amendments
Family Law Act 1975
240. Breachesof court orders are a major source of conflict and distress to allparties involved. The amendments in Schedule 2 ensure thatenforcement applications can be dealt with appropriately by thecourt. This is particularly important to ensure that one ofthe main objects of Part VII of the Act is fulfilled and thatchildren are able to have a meaningful relationship with bothparents.
241. The reasonthe whole Division has been repealed is to make clear the intentand structure of the Division. The provisions have beenre-ordered in a more systematic way. This addresses concernsof the LACA Committee that the existing provisions were complex anddifficult to understand. The revised Division provides a morelogical sequence of provisions. The issue of numbering raisedby the LACA Committee in recommendation 53 has also been addressedby the re-ordering of the Division.
242. Theprevious terminology and references to a three-stage parentingcompliance regime have been removed. These three stages werenot well understood as there was confusion about the fact thatstage 1 of the regime was in Division 6 of PartVII, whilestages 2 and 3 were in Division 13A.
Items 1 to 3 - Section 60C (tableitems 6 and 13A)
243. Items 1 to3 amend the table in section 60C (in Division 1 of Part VII of theAct) that provides an outline of the provisions in Part VII of theAct dealing with children. These amendments remove thereferences in items 6 and 13A of the table to ‘stage 1 ofparenting compliance regime’, ‘stage 2 of parentingcompliance regime’, and ‘stage 3 of parentingcompliance regime’, as this terminology is not used in thenew Division 13A (inserted by item 6).
Item 4 - Subsection 65D(3)
244. Item 4amends subsection 65D(3) in Subdivision B of Division 6 of PartVII. Section 65D sets out the court's power to make aparenting order. Subsection65D(3) provides that, if there isan adjournment of a proceeding for a contravention application sothat a party can apply for a further parenting order, the courtmust hear and determine the application for the parenting order assoon as practicable. It also allows the court, if it makes afurther parenting order, to dismiss the contravention applicationif that is appropriate. The change removes the terminology ofstage 2 and makes a consequential change to the paragraphreferences from 'paragraph70NG(1)(c) of proceedings underSubdivision B’ to ‘paragraph 70NEB(1)(c) of proceedingsunder Subdivision E’. This reflects the revisedstructure of Division 13A. (inserted by item 6).
Item 5 - Subsection 65D(3)(note)
245. Item 5amends the note to subsection 65D(3). Subsection65D(3)provides that, if there is an adjournment of a proceeding for acontravention application so that a party can apply for a furtherparenting order, the court must hear and determine the applicationfor the parenting order as soon as practicable. It alsoallows the court, if it makes a further parenting order, to dismissthe contravention application if that is appropriate. Thenote makes it clear that where a contravention application has beenadjourned, the person can apply to either the Family Court or theFederal Magistrates Court for the parenting order. The changeto the note is a consequential amendment to the reference from‘Subdivision B’ to ‘Subdivision E’ whichreflects the new structure of Division 13A (inserted by item 6).
246. The noteto item 5 clarifies that the words ‘: stage 1 of parentingcompliance regime’ are removed from the heading to section65DA of the Act. This section sets out the obligations on acourt when making a parenting order. This terminology of athree-stage parenting compliance regime is not used in therestructured and revised Division 13A (inserted by item 6).
Item 6 - Division 13A of Part VII
247. Item 6 repeals and replaces theexisting Division 13A which deals with the consequences of thefailure to comply with orders and other obligations that affectchildren. The replacement Division 13A is restructuredinto a more logical way.
Subdivision A - Preliminary
Section 70NAA - Simplified outline of theDivision
248. Subdivision A deals with preliminary matters that facilitate theoperation of Division 13A, including definitions of terms used inthe Division and the standard of proof to be applied in determiningmatters under the Division. Section 70NAA provides asimplified outline of the Division, designed to make the Divisioneasier for readers, particularly self-represented litigants, tounderstand and use.
249. Subsection70NAA(1) explains that the Division deals with the powers that acourt, exercising jurisdiction under the Act, has to make orders toenforce compliance under this Act affecting children. Forexample, parenting orders which deal with the time a child is tospend with a person.
250. Subsection70NAA(2) clarifies that, in all contravention proceedings underthis Division, the court has the power under Subdivision B to varythe parenting order. In doing so, the court will have regardto any parenting plan that has been entered into since the orderwas made. Section 70NBB is relevant in relation to the effectof a parenting plan in the contravention proceedings.
251. Subsection70NAA(3) outlines the different provisions that will be applied bythe court in assessing contravention applications. Inparticular it summarises the key differences in the application ofSubdivisions C, D and E. SubdivisionC applies where acontravention is alleged to have occurred, but is notestablished. This may include situations where there is anapplication but the court decides it can deal with the matterwithout making a finding about the contravention. SubdivisionD applies where the court makes a finding that a contravention hasoccurred, but there is a reasonable excuse for acontravention. It sets out the powers of the court to makeorders in that situation.
252. Subdivisions E and F apply where the court finds that acontravention has occurred and there is no reasonable excuse.Whether Subdivision E or F applies is a matter for the court todetermine and will depend on the seriousness of thecontravention. Subdivision E covers the cases where there isa less serious contravention application and Subdivision F coverscases where there is a more serious contravention application,including where there are repeated breaches of orders. TheSubdivisions set out the powers of the court to addresscontraventions in each category. The range of options for thecourt in each situation have been significantlyincreased.
Section 70NAB - Application ofDivision
253. Section 70NAB clarifies the application of Division 13A. Thisprovision is in exactly the same terms as section 70NAB of theexisting Act. The reason that it is in this Bill is becausethe whole of Division 13A has been repealed. It makes itclear that this Division only applies to contraventions committedafter the Division commences.
Section 70NAC - Meaning of contravened an order
254. Section70NAC sets out what it means for a party to have contravened anorder under the Act affecting children. To assist all usersof the Act, particularly self-represented litigants, a noteis inserted after section 70NAC to highlight that an action thatwould otherwise contravene a parenting order may not be acontravention if it is consistent with a subsequent parentingplan. This is because under new section 64D (inserted by item25 of Schedule 1), parenting orders may be subject to a subsequentparenting plan. Where a parenting order includes a section64D order, then a contravention application cannot be brought toenforce the original order if there is a subsequent parenting planthat has changed that aspect of the original parentingorder.
255. Forexample, there may be a parenting order that provides that thechild is to live with each parent for a week about. As thechild gets older and the child’s needs change the parents mayagree, using a parenting plan, that it would be in the bestinterests of the child that the child change residence eachfortnight. The new provision 64D would prevent either of theparents bringing a contravention application against the otherperson to seek to enforce the original orders. The parent nolonger happy with the arrangement agreed in the parenting plan willneed to either seek to negotiate a new agreement or seek to get newparenting orders.
Section 70NAD - Requirements taken to beincluded in certain orders
256. Section70NAD is in exactly the same terms as section 70ND of the existingAct. It refers to the provisions in Subdivision C of Division6 about the general obligations created by parenting orders - forexample, that a person cannot remove a child from the care of aperson where there is a parenting order that the child be in thatperson's care. Only the terminology has been changed.The terms ‘residence order’, ‘contactorder’ and ‘specific issues order’ are replacedwith references to orders relating to whom a child is to live,spend time and communicate. This is consistent withrecommendation 4 of the FCAC’s report.
Section 70NAE - Meaning of reasonableexcuse for contravening an order
257. Section70NAE sets out what constitutes a reasonable excuse forcontravening a parenting order. Where there is a reasonableexcuse the court is required to ensure the person understands theirobligations under the order and consequences if the order is againbreached. An example of a reasonable excuse is actionnecessary to protect the health or safety of a person, includingthe respondent or the child.
258. Thisprovision is in exactly the same terms as section 70NE of theexisting Act, with minor consequential drafting changes. Theterminology has changed. ‘Residence order’ isreplaced by a ‘parenting order which deals with who a childis to live with. ‘Contact order’ is replaced by a parentingorder which deals with whom a child is to spend time or tocommunicate. ‘Specific issues order’ isreplaced with a reference to ‘a parenting order to whichsection 65P applies.’ Section 65P provides the generalobligations that are created by parenting orders to the extent towhich the order allocates parental responsibility to aperson. It ensures that a person cannot hinder a person incarrying out such an order. The changes in terminology ensurethe more generic description of parenting orders operates.The provisions have consequentially been renumbered.
Section 70NAF - Standard ofproof
259. Section 70NAF replaces section 70NEA in the existing Act. Itprovides clarification of the standard of proof to be applied bythe court in considering enforcement applications. Thecurrent test provided by section 140 of the Evidence Act1995 is the civil standard of proof, the balance ofprobabilities, with the court to take account of the gravity ofmatters. Section 70NAF aims to assist practitioners andself-represented litigants by clarifying the circ*mstances inwhich the court will apply a different standard of proof.
260. Newsubsection 70NAF(1) specifies that the court should generally applythe civil standard of proof, the balance of probabilities, inconsidering matters in proceedings under Division 13A of Part VIIof the Act. This is subject to subsection 70NAF(3), whichprovides that a stricter standard applies to orders beingconsidered under the more serious contravention applications thatmay incur a criminal penalty under provisions in Subdivision F.
261. Newsubsection70NAF(2) clarifies that the court shouldalso apply the civil standard when determining whether a person hada reasonable excuse for having contravened an order affecting achild under this Act. This approach should mean that it iseasier for many less serious contraventions to be dealt with by thecourt as they will not need to be treated as a quasi-criminalproceeding.
262. Newsubsection 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 isconsidering a criminal consequence for the contravention of anorder (for example, imposing a bond, a fine, or a sentence ofimprisonment). This is appropriate given the consequences forthe individual of orders that impose criminal sanctions.
Subdivision B - Court’s powerto vary parenting order
Section 70NBA - Variation ofparenting order
263. Section70NBA is inserted as the first section of Subdivision B. Itsets out the court’s power to vary a parenting order where acontravention of an order under the Act affecting children has beenalleged. The court may vary a parenting order underSubdivision B regardless of whether the contravention is also dealtwith under Subdivisions D, E or F.
264. Experiencesuggests that many contravention applications come to the courtbecause circ*mstances have changed and the existing orders are nolonger appropriate. This provision makes it clear that thecourt always has the power to vary the order whether it is a matterwhere a contravention is not established or where there is aserious contravention and the court is making orders imposingcriminal type penalties. This flexibility should assist inresolving many applications that come to the courts throughcontravention applications without the need for separate variationapplications to be lodged. Having this provision at the startof the Subdivision is intended to simplify its application and toreduce the need for the duplication of a similar provision in eachof the subsequent Subdivisions.
265. Subsection70NBA(1) sets out when a court may make an order varying a‘primary order’. ‘Primary order’ isdefined in the dictionary in section 4 of the Act to mean an orderunder the Act affecting children or a variation of such anorder. A court may vary a primary order where contraventionproceedings are brought in relation to that order and it is allegedthat a person has contravened the order. The court may do sowhether or not it finds that a contravention has beencommitted. This flexibility is appropriate as the disputeabout the contravention may highlight the fact that the primaryorder is no longer suitable due to a change in the child’scirc*mstances. In such a case, it is important that the courthave the power to vary the order regardless of whether or not acontravention has been committed.
266. Subsection70NBA(2) provides that if there is a more serious contravention,that would otherwise be dealt with under Subdivision F, then thecourt must take account of certain considerations if it decides tovary the order under subsection 70NBA(1). These additionalconsiderations are set out in paragraphs 70NBA(2)(a) to (d).They include that the person who contravened the order did so afterhaving attended, refused or failed to attend, or been foundunsuitable to take any further part in, a post-separation parentingprogram, or that there was no such program that the person couldattend. The court must also consider whether it would not beappropriate for a person to attend such a program or part of aprogram because of the behaviour of the person who contravened theorder. An additional consideration is whether the primaryorder was a compensatory parenting order made under paragraph70NEB(1)(b) or subsection 70NFB(2) after the person had contraveneda previous order under the Act affecting children. Theintention of this provision is to ensure that, when varying anorder involving serious or repeated contraventions, the courtconsiders whether there are other viable options such as orderingthe person to attend a post-separation parenting program ormaking a compensatory order are viable, or whether they have beentried before without success. The best interests of the childremain the paramount consideration in varying anyorder.
Section 70NBB - Effect of parentingplan
267. Newsection 70NBB requires the court to have regard to the terms of aparenting plan that parents have made subsequent to a parentingorder, when it is considering whether to vary a parenting orderunder section 70NBA above. This section is relevant to thoseparenting orders which do not have an order made by section 64D(which provides that subsequent parenting plans make the ordersunenforceable). These provisions will be particularlyrelevant once the family law reforms are in place. People whohad made parenting orders some time ago will be encouraged, and insome cases will be required, to attend a dispute resolution processbefore making an application to a court. Agreements will beencouraged rather than going back to court.
268. Subsection70NBB(1) sets out that the section applies to situations where aparenting order is made about a child, and after that order wasmade, the parents made a parenting plan that dealt with a matterthat was covered by the parenting order.
269. Subsection70NBB(2) requires the court, when exercising its powers to vary anorder under section 70NBA, to consider the terms of the parentingplan and whether to make an order varying the parenting order toinclude some or all of the provisions of the parenting plan, withor without modification. Section70NBB gives greaterimportance to parenting plans made after parenting orders, in orderto provide maximum flexibility for parents to come to agreementeven if there is a parenting order in effect. Section 70NBBimplements recommendation 39 of the LACA Report.
270. Theprovision allows the court to consider the type of arrangementsthat the parties may have considered and which have not worked forthem. The parenting plan may be very relevant if the reasonthat one party has technically contravened an order was becausethey thought they had a formal agreement with the otherparty. The court is not bound by the subsequent parentingplan - it is simply to be taken into consideration.
271. Theprovision will also be very relevant in the new family law systemwhich aims to keep people out of court. People with existingorders will be encouraged to use parenting plans rather thanparenting orders to address changing circ*mstances. They willbe supported in making parenting plans by the services of theFamily Relationship Centres. It is therefore appropriate thatthese be taken into account if the matter does need to return tocourt at a later date.
272. Asdiscussed previously, section 70NBB will only be relevant for theenforcement of parenting orders that do not have a section 64Ddefault clause. This is providing that the parenting order issubject to a subsequent parenting plan (for example, parentingorders made prior to the commencement of the provision or where thecourt has exercised its discretion not to include theprovision). The effect of section64D (inserted by item25 of Schedule 1) is that a parenting order will be unenforceableto the extent it is inconsistent with a subsequent parentingplan. This is appropriate in the new system which willencourage people to resolve issues by agreement rather than throughthe courts. People will know upfront, when they get theirinitial parenting order, of the potential effect of subsequentparenting plans.
Subdivision C - Contravention allegedbut not established
Section 70NCA - Application ofSubdivision
273. Section70NCA is the first section of Subdivision C. It provides thatSubdivision C applies where a contravention is alleged to haveoccurred but is not established. This is the first of thepotential options available for the court in dealing with acontravention application. For example, this provision willapply where the person fails to satisfy the standard of proof onthe balance of probabilities that there has been acontravention.
274. The courtcan still look at the existing orders and determine ifcirc*mstances have changed, and if a variation of the originalparenting order is warranted. The note to section 70NCA is animportant signpost for readers, particularly self-representedlitigants. It clarifies that, in addition to thecourt’s powers in Subdivision C to order costs against theperson who brought the proceeding, the court may also vary theorder that has been contravened under SubdivisionB.Subdivision B sets out the court’s power to vary a parentingorder and the effect of a subsequent parenting plan where acontravention has been alleged.
Section 70NCB - Costs
275. Section70NCB provides that the court may order that the person who broughtthe contravention proceedings pay some or all of the costs of theother party or parties to the proceedings. The court mustconsider, in making such an order, if the applicant has previouslybrought contravention proceedings in relation to the primary order(or another primary order) and if, on the most recent occasion onwhich the person brought the proceedings, the court was notsatisfied that a contravention had been committed or was satisfiedthat a contravention had been committed but did not make an orderunder section70NBA, 70NDB, 70NDC, 70NEB or 70NFB (these arethe sections under which the court has the power to make ordersdealing with contraventions that it finds). The intention isto deter people from making repeated contravention applicationswhich aim to harass or inconvenience the other party. Thisimplements recommendation 40 of the LACA Report.
SubdivisionD - Contravention established but reasonable excuse forcontravention
Section70NDA - Application of Subdivision
276. Section70NDA is the first section of Subdivision D. It provides thatSubdivision D applies if the court is satisfied that a person hascommitted a contravention of a primary order, but that the personhad a reasonable excuse for the contravention. This appliesto a contravention committed before or after the commencement ofthis Subdivision of a primary order made before or after thecommencement of the Subdivision. ‘Primary order’is defined in the dictionary in section 4 of the Act to mean anorder under the Act affecting children, or a variation of such anorder. Section 70NAE in Subdivision A explains whatconstitutes a reasonable excuse for contravening anorder.
277. The noteto 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 ordermake up contact time or to order costs against the person whobrought the application, the court may vary the order that has beencontravened under Subdivision B. Subdivision B sets out thecourt’s power to vary a parenting order and to take accountof a parenting plan where a contravention of an order under the Actaffecting children has been alleged. This ensures flexibilityto address changing circ*mstances which warrant a variation of theparenting order without the need for a separate application to bemade.
Section 70NDB - Order compensatingperson for time lost
278. The firstoption for the court to consider when Subdivision D applies is setout in section 70NDB. This section provides that if a personhas contravened a parenting order and the result of thecontravention is that another person did not spend time with thechild or that the child did not live with another person for aparticular period, the court must consider making an order whichcompensates the person for the time they did not spend with thechild or did not have the child living with them.
279. Thisallows for the court to order make-up time even where the personwho committed the contravention had a reasonable excuse. Thisis appropriate given that the original parenting order for contactwas made in the best interests of the child, that contact with bothparents is an important aspect of ensuring that a child maintains ameaningful relationship with both parents and that parents are ableto fulfil their parental responsibilities in relation to theirchild.
280. The noteto subsection 70NDB(1) is a signpost for readers directing them tothe sections of Subdivisions E and F under which the court has thepower to make an order compensating a person for time lost.Unlike Subdivision D, these Subdivisions apply where a person doesnot have a reasonable excuse for a contravention. In thosecases, the court has a number of other options, as well as orderingmake-up time.
Section 70NDC - Costs
282. The secondoption for the court to consider when Subdivision D applies is setout in section 70NDC. This section provides that if the courtdoes not make an order under section 70NDB compensating a personfor lost time, the court may order that the person who brought thecontravention proceedings pay some or all of the costs of the otherparty or parties to the proceedings. The court must considermaking such an order if the applicant has previously broughtcontravention proceedings about the primary order (or anotherprimary order) and, on the most recent previous occasion on whichthe person brought the contravention proceedings, the court was notsatisfied that a contravention had been committed, or was satisfiedthat a contravention had been committed but did not make an orderunder section 70NBA, 70NDB, 70NEB or 70NF dealing with thecontravention. The intention of this provision is to deterpeople from making repeated contravention applications which aim toharass or inconvenience the other party. This implementsrecommendation 40 of the LACA Report.
Subdivision E - Contravention withoutreasonable excuse (less serious contravention)
Section 70NEA - Application ofSubdivision
283. Subsection70NEA(1) sets out when Subdivision E applies. It applies if aperson has committed a contravention of a primary order (defined inthe dictionary in section 4 of the Act) with no reasonable excuse,and the contravention is of a less serious nature. Section70NAE in Subdivision A explains what constitutes a reasonableexcuse for contravening an order.
284. Subsections 70NEA(2) and (3) clarify when a contravention is of aless serious nature such that Subdivision E applies. Undersubsection 70NEA(2), the Subdivision will apply if no court haspreviously imposed a sanction, taken action, or adjournedproceedings under paragraph 70NEB(1)(c) in respect of acontravention by the person. Thus persons who repeatedlybreach parenting orders will generally not be dealt with under thisSubdivision, but under the Subdivision that deals with more seriouscontraventions. However, under subsection 70NEA(3), in somecases where there has been more than one contravention and where acourt has previously imposed a sanction, or taken action, oradjourned proceedings under paragraph 70NEB(1)(c) in respect of acontravention by the person, but the court is satisfied that thecirc*mstances of the current contravention make it more appropriatefor it to be dealt with under Subdivision E, it can deal with thematter as a less serious contravention. This provides thecourt flexibility to decide it is appropriate to deal with a matteras a minor contravention even where there has been a previousbreach. The substance of these provisions has not changedfrom the existing provisions.
285. Subsection70NEA(4) provides that Subdivision E will not apply even if thecirc*mstances set out in subsection 70NEA(2) are met, if the courtis satisfied that the person who contravened the primary order hasbehaved in a way that showed a serious disregard for his or herobligations under the primary order. This allows the courtthe flexibility to decide that the contravention should be dealtwith as a contravention of a more serious nature under SubdivisionF, where there are more serious penalties available includingcriminal sanctions.
286. Subdivision E effectively replaces stage 2 of the parentingcompliance regime in the existing Act. It is not intended tocover serious or repeated contraventions of a parentingorder. These are covered by new Subdivision F (previouslystage 3 of the parenting compliance regime).
Section 70NEB - Powers of Court
287. Wherethere is a less serious contravention and Subdivision E applies,the court has the powers set out in section70NEB. Thesepowers expand on those in subsection 70NG(1) of the existing Act inorder to strengthen the existing enforcement regime.
288. Underparagraph 70NEB(1)(a), the court may direct the person whocontravened the order, or that person and another specified person,to attend a post-separation parenting program. The intentionis that this will help parents resolve problems that affect thecarrying out of their parenting responsibilities. This optionis already available. Under paragraph 70NEB(1)(b), the courtmay now also make an order which compensates a party for the timethey did not spend time with the child or did not have the childliving with them as a result of the contravention. Underparagraph 70NEB(1)(c), the court may adjourn the proceedings toallow the parties to apply for a further parenting order.These paragraphs are essentially the same as existingparagraphs70NG(1)(a), (b) and(c). The terminologyin paragraph70NG(1)(b) has been changed. The referenceto ‘contact’ is replaced with ‘time the persondid not spend with the child’ and the reference to‘residence’ is replaced with ‘time the child didnot live with the person’. This is consistent withrecommendation 4 of the FCAC’s report.
290. Newparagraph 70NEB(1)(e) enables the court to order the person whocontravened an order to compensate another person who incurredexpenses as a result of the contravention. The expensesincurred must be reasonable expenses. This provision isintended to cover situations where airfares or other ticketspurchased are wasted as a result of a person, for example, notmaking the child available for time with the other parent under aparenting order.
291. Newparagraph 70NEB(1)(f) enables the court to make an order that theperson who committed the contravention pay some or all of the costsfor legal expenses of the other party or parties to theproceedings.
292. Where thecourt makes no other orders in relation to the contravention, newparagraph 70NEB(1)(g) enables the court to order that the personwho brought the proceedings pay some or all of the costs of theperson who committed the contravention. The court mustconsider making such an order in the circ*mstances set out insubsection 70NEB(7), below. The intention is to deter peoplefrom making repeated contravention applications which aim to harassor inconvenience the other party. This implementsrecommendation 40 of the LACA Report.
293. Note 1 to subsection 70NEB(1) provides an important signpost for readers, particularlyself-represented litigants. It clarifies that, in addition tothe court’s powers in Subdivision E, the court may, underSubdivision B, vary the order that has been contravened.Subdivision B sets out the court’s power to vary a parentingorder and consider the effect of parenting plan where acontravention of an order under the Act affecting children has beenalleged.
294. Note 2 tosubsection 70NEB(1) clarifies that before the court makes an orderfor a person to attend a post-separation parenting program, itconsider seeking the advice of a family consultant. This isappropriate as they are likely to have more experience in dealingwith local services and a better understanding of what might beavailable and suitable for the individual. The note refersreaders to section 11E (inserted by Schedule 4) which sets out whenthe court may seek advice from a family consultant.
Subsection 70NEB(2) and (3)
295. Subsections 70NEB(2) and (3) are in exactly the same terms assubsections70NG(2) and (3)of the existing Act. Subsection 70NEB(2) dealswith when a court can make an order under paragraph 70NEB(1)(a)that a person, other than the person who committed thecontravention, attend a post-separation parentingprogram. Subsection 70NEB(3) requires the principal executiveofficer of the court to notify the provider of the program that theorder has been made. This is to ensure that they are aware ofthe orders. The reason these provisions are repeated in thisBill is because the whole of Division13A has beenrepealed.
Subsection 70NEB(4) and (5)
296. Subsection70NEB(4) provides further details about the application ofparagraph 70NEB(1)(b) which allows the court to make an ordercompensating a person for time the person did not spend or livewith the child due to a contravention. This is appropriate asit may ensure the child benefits from time with the other personthat they have missed out on.
297. Newsubsection70NEB(4) provides that the court mustconsider making a compensatory order under paragraph 70NEB(1)(b)where a contravention of a parenting order has occurred which hasresulted in a person not spending time with, or living with, achild. However, subsection 70NEB(5) provides that the courtmust not make a compensatory time order under paragraph 70NEB(1)(b)where it would not be in the best interests of the child to doso.
Subsection 70NEB(6)
298. Subsection70NEB(6) provides further details about the application ofparagraph70NEB(1)(c) which provides that the court mayadjourn the proceedings to allow the parties to apply for a furtherparenting order. This provision is in exactly the same termsas subsection 70NG(1A) of the existing Act.
Subsection 70NEB(7)
299. Subsection70NEB(7) provides further details about the application ofparagraph70NEB(1)(g) which enables the court to order thatthe person who brought the proceedings pay some or all of the costsof the person who committed the contravention. The court mustconsider making such an order if the applicant has previouslybrought contravention proceedings in relation to the order and, onthe most recent occasion on which the person brought theproceedings, the court was not satisfied that a contravention hadbeen committed or was satisfied that a contravention had beencommitted but did not make an order under section 70NBA, 70NDB,70NDC, 70NFB or 70NBA (these are the sections under which the courthas the power to make orders dealing with contraventions).The intention is to deter people from making repeated contraventionapplications for minor breaches which aim to harass orinconvenience the other party. It is only applicable wherethe court has considered the issue and decided that no orders areappropriate. This is one of a number of amendments thatimplement recommendation 40 of the LACA Report.
Section 70NEC - Bonds
300. Section70NEC provides for the type of bonds the court may require a personto enter into as a sanction for committing a less seriouscontravention under the new paragraph 70NEB(1)(d). The courtmust specify the period of the bond (limited to 2 years)(subsection 70NEC(2)) and determine if the bond is to be with orwithout surety and security (subsection 70NEC(3)).
301. Theconditions that may be imposed on a person by a bond are detailedin subsection 70NEC(4) but are not limited to those listed in thatsubsection. The court may require good behaviour by a personor for that person to attend an appointment with a familyconsultant, or attend family counselling or family disputeresolution.
302. Subsection70NEC(5) requires the court, if it proposes to require a person toenter into a bond, to clearly explain to a person in languagelikely to be understood by the person, the purpose and effect ofthe requirement and the consequences of not entering into the bondor failing to act in accordance with the bond. Thisrequirement on the court is consistent with other provisions in theAct that oblige the court, lawyers and others, to provide clearinformation about the nature and effect of any orders made inproceedings under this Act so that there can be no misunderstandingabout what is intended.
Section70NED - Duties of provider of post-separation parentingprogram
303. Section70NED replaces section 70NH of the existing Act. It providesthat a provider of a post-separation parenting program, which aperson has been ordered to attend under paragraph 70NEB(1)(a), mustinform the court if the provider considers the person to beunsuitable to attend the program, or if the person fails to attendthe whole or part of the program.
Section 70NEF - Evidence
304. Section70NEF replaces section 70NI of the existing Act.Subsection70NEF(1) provides that evidence of anything said,or any admission made, by a person attending a post-separationparenting program is not admissible in any court, or anyproceedings. However, subsection70NEF(2) provides thatevidence in the form of an adult's admission of abuse or risk ofabuse to a child under 18 years, or a disclosure by a child that heor she has been abused or is at risk of abuse, is not excluded byoperation of subsection 70NEF(1).
Section 70NEG - Court may makefurther orders in relation to attendance at program
305. Section70NEG replaces section 70NIA of the existing Act, and allows thecourt to make appropriate orders if a person who has been orderedto attend post-separation parenting program does not attend, or wasassessed as unsuitable to attend.
Subdivision F - Contravention withoutreasonable excuse (more serious contravention)
Section 70NFA - Application ofSubdivision
306. Subsection70NFA(1) sets out that Subdivision F applies if a person hascommitted a contravention of a primary order (defined in thedictionary in section 4 of the Act) with no reasonable excuse andthe contravention is of a more serious nature. Section 70NAEexplains what constitutes a reasonable excuse for contravening anorder. The note to subsection 70NFA(1) refers the reader tosection 70NAF, which sets out the applicable standard of proof indetermining matters under Division 13A.
307. Subsections 70NFA(2) and (3) clarify when a contravention is of amore serious nature such that Subdivision F applies. Undersubsection 70NFA(2), this will be the case even if no court haspreviously imposed a sanction, taken action, or adjournedproceedings under paragraph 70NEB(1)(c) in respect of acontravention by the person, yet the court is satisfied that theperson has behaved in a way that showed a serious disregard of hisor her obligations under the primary order. Thus a person whoonly commits one contravention can be immediately dealt with underthis Subdivision if they show serious disregard for theirobligations. What amounts to a serious disregard will dependon the circ*mstances of the case but, by way of example, couldinclude the removal of a child to another place despite orders ofthe court or harassment despite repeated warnings and the terms ofthe parenting order. In such cases, the court will deal withthe matter under Subdivision F, which requires the court toconsider imposing more serious penalties ranging from communityservice orders to fines and imprisonment.
308. Subsection70NFA(3) clarifies that a contravention is of a more seriousnature, such that Subdivision F applies, if a court has previouslyimposed a sanction, taken action, or adjourned proceedings underparagraph 70NEB(1)(c) in respect of a contravention by theperson. Thus where there have been repeated breaches thematter would ordinarily be dealt with as a more seriouscontravention under Subdivision F.
309. Subsection70NFA(4) provides that Subdivision F does not apply if the court issatisfied that it is more appropriate for the contravention to bedealt with under Subdivision B. Under Subdivision B the courtcan vary a parenting order and must take account of a subsequentparenting plan. This allows the court the flexibility todecide that the contravention is best dealt with by varying theparenting order. This is appropriate as in some cases avariation of the parenting order may be the most appropriate optioneven where the conditions for the application of Subdivision F aremet. For example, there may be a serious contravention andthe court may simply decide it is in the best interests of thechild to vary the parenting order to reverse the order about whothe child will live with but not to impose any other penalty underSubdivision F.
310. Subsection70NFA(5) clarifies that the Subdivision applies whether theparenting order to which the contravention relates was made priorto the commencement of the new division; or whether thecontravention occurred prior to the commencement of the newdivision. This provision is in the same terms as subsection70NJ(2B) of the existing Act.
311. Subdivision F effectively replaces stage 3 of the parentingcompliance regime in the existing Act.
Section 70NFB - Powers ofCourt
312. WhereSubdivision F applies and there is a more serious contravention,the court has the powers set out in section70NFB. Thesepowers expand on those in the existing Act in order to strengthenthe existing enforcement regime.
313. Newparagraph 70NFB(1)(a) provides that where there is a seriouscontravention there is a presumption that the court will ordercosts against the person who hascontravened the order (using the courts power to award costs underparagraph70NFB(2)(g) ) unless it is not in the bestinterests of the child.
314. Paragraph70NFB(1)(b) provides that where the court makes an order for costsunder paragraph 70NFB(2)(g), the court must also consider makinganother order under subsection 70NFB(2). For example, acompensatory order, a community service order or an order imposinga fine.
315. Where thecourt does not make an order for costs underparagraph70NFB(2)(g), the court must make at least one otherorder under subsection 70NFB(2) that the court considers to be themost appropriate. This ensures that the court must imposesome kind of sanction to more serious contraventions.
316. Subsection70NFB(2) lists the powers that are available to the court underSubdivision F for serious contraventions. These powers expandon those in subsection 70NJ(3) of the existing Act in order tostrengthen the existing enforcement regime. The existingsubsection 70NJ(3) provides that the court can impose varioussanctions including a community service order, a bond, a fine of upto 60 penalty units or a sentence of imprisonment for a period of12 months or less. These sanctions are retained in paragraphs70NFB(2)(a), (b), (d) and (e) respectively.
317. Newparagraph 70NFB(2)(c) expands the possible sanctions to include apower for the court to make a compensatory order for the time aperson did not spend with the child as a result of thecontravention.
318. Newsubparagraph 70NFB(2)(f) enables the court to order the person whocontravened an order to compensate another person who incurredexpenses as a result of the contravention. The expensesincurred must be reasonable expenses. This provision isintended to cover situations where airfares or other ticketspurchased are wasted as a result of a person, for example, notmaking the child available for time with the other parent under aparenting order.
319. Newsubparagraph 70NFB(2)(g) enables the court to make an order thatthe person who contravened an order pay all of the costs for legalexpenses of the other party or parties to the proceedings underDivision 13A. New subsection 70NFB(1) inserts a presumptionthat where Subdivision F applies the court will make a costs orderunder paragraph 70NFB(2)(g) unless it is not in the best interestsof the child.
320. Newparagraph 70NFB(2)(h) enables the court to make an order that theperson who contravened an order pay some of the costs for legalexpenses of the other party or parties to the proceedings underDivision 13A.
321. Subsection70NFB(3) provides that where a court varies or discharges acommunity service order under section 70NFD it may give anydirection as to the effect of the variation or discharge as itthinks appropriate. This provision is in exactly the sameterms as subsection 70NJ(4) of the existing Act, with minorconsequential drafting changes.
322. Subsection70NFB(4) provides that a sanction of imprisonment may be imposedfor the non-payment of maintenance where the contravention wasintentional or fraudulent. This provision is in similar termsas subsection70NJ(6) of the existing Act.
323. Subsection70NFB(5) provides that the court must not impose a sanction ofimprisonment in respect of a breach of certain provisions of the Child Support (Assessment) Act 1989 - in particular, acontravention of a child support assessment or a breach of a childsupport agreement made under that Act, or a contravention of adeparture 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.
324. Subsection70NFB(6) provides the court with flexibility to express an ordermade under section 70NFB to take effect immediately, at the end ofa specified period or on the occurrence of a specified event.This provision is in exactly the same terms assubsection70NJ(7) of the existing Act.
325. Subsection70NFB(7) clarifies that at the time of imposing a sanction thecourt may also make other orders it considers necessary to ensurefuture compliance. This provision is in exactly the sameterms as subsection70NJ(8) of the existing Act.
Section 70NFC - When court isempowered to make a community service order
326. Section70NFC sets out the details of a community service order the courtis empowered to make under paragraph 70NFB(2)(a). Thisprovision is in similar terms to section 70NK of the existing Act,with only minor consequential drafting changes.
Section 70NFD - Variation anddischarge of community service orders
327. Section70NFD provides for the variation and discharge of community serviceorders. This provision is in similar terms to section 70NL ofthe existing Act, with only minor consequential draftingchanges.
Section 70NFE - Bonds
328. Section70NFE provides for bonds that the court may impose underparagraph70NFB(2)(b). This provision is in similarterms to section 70NL of the existing Act, with only minorconsequential drafting changes.
Section 70NFF - Procedure forenforcing community service orders or bonds
329. Section70NFF provides for the procedure for enforcing community serviceorders or bonds. This provision is in similar terms tosection 70NN of the existing Act, with only minor consequentialdrafting changes.
Section 70NFG - Sentences ofimprisonment
330. Section70NFG provides for sentences of imprisonment that may be imposed bythe court under paragraph 70NFB(2)(e). This provision is insimilar terms to section70NO of the existing Act, with minorconsequential drafting changes.
Section 70NFH - Relationship betweenSubdivision and other laws
331. Section70NFH explains the relationship between Subdivision F and otherlaws. This provision is in similar terms to section 70NP ofthe existing Act, with only minor consequential draftingchanges.
Section70NFI - Arrangements with States and Territories for carryingout of sentences and orders
332. Section70NFI explains the arrangements with the States and Territories forcarrying out sentences and orders. This provision is inexactly the same terms as subsection 70NQ of the existing Act.
Section70NFJ - Subdivision does not limit operation of section105
333. Section70NFJ explains the interaction between Subdivision F andsection105. This provision is in exactly the same termsas subsection 70NR of the existing Act.
Item 7 - Subsection 117(1)
334. Subsection117(1) states the principle that each party to proceedings undertheAct shall bear his or her own costs. Item 7 amendssubsection 117(1) to make the principle subject to new subsection70NFB(1). Subsection70NFB(1) inserts a presumptionthat, where there is a contravention to which Subdivision Fapplies, the court will make an order for costs against the partywho has committed the contravention, unless it is not in the bestinterests of the child. Item 7 is a consequentialamendment to facilitate the operation of subsection 70NFB(1).
Part 2 - Application of amendmentsand savings
Item 8 - Definitions
335. Item 8provides definitions for the terms 'commencement', 'new Act', and'old Act' used in this Part.
Item 9 - Application
336. Item 9specifies that the Schedule 2 amendments apply to a contraventionof a parenting order (or alleged contravention) that occurs on orafter the commencement of the Schedule.
Item 10 - Saving of regulations
337. Item 10identifies regulations that were made under the specifiedprovisions of the Act prior to the commencement of theseamendments. This item saves those regulations so that theywill continue to have effect on and after the commencement of theseamendments, as if they had been made for the purpose of specifiedcorresponding provisions of the amended Act. A table ofcorresponding provisions is provided.
SCHEDULE 3- AMENDMENTS RELATING TO THE CONDUCT OF CHILD-RELATEDPROCEEDINGS
Part 1- Amendments
338. Schedule3, Part 1 implements a range of amendments to provide legislativesupport for a less adversarial approach to be adopted in allchild-related proceedings under the Act. This approach relieson active management by judicial officers of matters and ensuresthat proceedings are managed in a way that considers the impact ofthe proceedings themselves (not just the outcome of theproceedings) on the child. The intention is to ensure thatthe case management practices adopted by courts will promote thebest interests of the child by encouraging parents to focus ontheir parenting responsibilities.
339. Thisapproach largely reflects the approach taken by the Family Court inits pilot of the Children’s Cases Program although it is notintended to restrict courts exercising family law jurisdictionunder that program. The approach contains provisionsabout procedure already contained in the Federal Magistrates Act1999 . It also reflects provisions relating to managementof cases in the United Kingdom Civil Procedure Rules(40 th Update) and the Children and Young Persons(Care and Protection Act) Act 1998 (NSW).
Commencement
340. Theamendments made by Part 1 of this Schedule will apply toproceedings commenced by an application filed on or after 1 July2006. This will allow time to implement new procedureswithin courts exercising family law jurisdiction, and otherconcurrent family law reforms.
EvidenceAct 1995
Item 1- At the end of subsection 190(1)
341. Item 1adds a note at the end of subsection 190(1) of the Evidence Act1995 (the Evidence Act) to highlight that the Act deals withthe evidence issues in child-related proceedings, as definedin section 69ZM (inserted by item 4 of this Schedule).Section 69ZM is the section that sets out the proceedings to whichnew Division12A applies. This includes all proceedingsunder Part VII of the Act (the part of the Act that deals withchildren). It also includes any other proceedings between theparties that arise from the breakdown of their relationship andthat involve the court exercising family law jurisdiction, if theparties consent. This gives parties the option of resolvingall elements of their family law dispute using the same lessadversarial procedures that apply in children’smatters.
FamilyLaw Act 1975
Item 2- Subsection 4(1)
342. Item 2inserts a definition of ‘child-related proceedings’into subsection 4(1) of the Act, containing the definitions thatare used throughout the Act. ‘Child-relatedproceedings’ is defined by reference to section 69ZM whichsets out the proceedings to which new Division12Aapplies. Division 12A contains the principles for conductingchild-related proceedings in a less adversarial manner. Thedefinition is important because the provisions in Division 12A onlyapply to matters which are ‘child-relatedproceedings’.
Item 3- Section 60C (after table item 12)
343. Item 3inserts a new item 12A into the table in section 60C which providesan outline of the provisions in Part VII of the Act (the Part ofthe Act that deals with children). The item refers to theaddition of new Division 12A into PartVII. Division 12Acontains the principles for conducting child-related proceedings ina less adversarial manner and the duties and powers of the court ingiving effect to these principles.
Item 4- After Division 12 of Part VII
344. Item 4inserts new Division 12A into Part VII of the Act relating tochildren. Division 12A sets out the principles for conductingchild-related proceedings in a less adversarial manner. TheDivision contains a list of general duties and powers that a courtmust adopt in child-related proceedings and the rules of evidencein those proceedings.
Subdivision A - Proceedings to whichthis Division applies
Section 69ZM- Proceedings to which this Division applies
345. Newsection 69ZM defines what is meant by ‘child-relatedproceedings’, and how Division 12A applies. Division12A only applies to ‘child-related proceedings’.Firstly, subsection69ZM(1) provides that ‘child-relatedproceedings’ are all proceedings under Part VII of theAct. Part VII relates to children and deals with proceedingsfor orders such as parenting orders, child maintenance orders,location and recovery orders, orders for the enforcement of ordersaffecting children, and proceedings for injunctions relating tochildren.
346. Secondly,paragraph 69ZM(2)(a) provides that ‘child-relatedproceedings’ include proceedings that are partly under PartVII of the Act to the extent that they are proceedings under thatPart. Paragraph 69ZM(2)(b) then provides that‘child-related proceedings’ can also includeproceedings that are partly under Part VII of the Act to the extentthat they are not proceedings under that Part, if the partiesconsent. Subsection 69ZM(5) ensures that any such consentmust be free from coercion and in a form to be prescribed by theRules of Court. This requirement that consent be free fromcoercion implements LACA recommendation 35.
347. Subsection69ZM(3) provides that ‘child-related proceedings’ alsoinclude any other proceedings between the parties that involve thecourt exercising jurisdiction under the Act and that arise from thebreakdown of the parties’ marital relationship, if theparties consent. This may include, for example, propertysettlement proceedings or spousal maintenance proceedings.However, Division 12A will only apply to such proceedings where theparties have each consented and where the parties are also partiesto proceedings under Part VII of the Act or have been parties tosuch proceedings. Subsection 69ZM(5) ensures that any suchconsent must be free from coercion.
348. Newparagraph 69ZM(5)(a) provides that the consent to a matter becominga child-related proceeding must be free from coercion. Thisimplements recommendation 35 of the LACA Report and addressesconcerns that weaker parties may be forced into giving theirconsent by stronger parties. New paragraph 69ZM(5)(b) allowsthe Rules of Court to prescribe the form by which consent must begiven. This will ensure a standard procedure for signifying consentthat will allow the court to be satisfied that the consent of theparties is deliberate and informed.
349. Subsection69ZM(6) provides that consent given by persons for the purposes ofsubsection 69ZM(5) is irrevocable except with leave of thecourt. This means that if a party has given his or herconsent to a proceeding which is covered by paragraph 69ZM(2)(b) orsubsection 69ZM(3) being dealt with by a court in accordance withthe provisions in new Division 12A, that party cannot later revokethat consent without the leave of the court and have the disputedealt with otherwise than in accordance with Division 12A.The intention is to minimise the costs involved in courts having toadopt a different case management approach once a matter has begunon the basis that parties have changed their minds aboutconsent. The fact that consent must be demonstrated by a formprescribed by the court will ensure that there is evidence aboutwhat the parties have agreed.
SubdivisionB - Principles for conducting child-relatedproceedings
Section 69ZN- Principles for conducting child-related proceedings
350. Newsection 69ZN sets out the principles for conducting child-relatedproceedings. Subsection 69ZN(1) provides that the court mustgive effect to these principles in performing its duties andexercising its powers (whether under this Division or otherwise) inchild-related proceedings, and in making other decisions about theconduct of child-related proceedings. These principles willapply in the exercise of the court’s duties and powers inother proceedings that the parties have consented to join tochild-related proceedings, and therefore to which Division 12Aapplies, by virtue of paragraph 69ZM(2)(b) and subsection69ZM(3). However, the proceedings, or any order made in them,will not be invalid should the court fail to apply a principle.
351. Subsection69ZN(2) removes any doubt that regard is to be had to theprinciples in interpreting Division 12A.
352. The firstprinciple, in subsection 69ZN(3), is intended to ensure that theproceedings are focussed on the child. This means that thecourt must consider the child’s needs and the impact that theconduct of the proceedings may have on him/her. In particularthe court must consider the likely stress on the child of theconflict between the parents that is created by the proceedings andseek to minimise this. The court may, for example,consider making orders that the child attend family counselling toassist the child to understand the court’s orders or thetrial process. The court may also, when setting hearingdates, consider the stress caused to the child by lengthy timesbetween hearing dates and seek to minimise this impact whereappropriate.
353. The secondprinciple, in subsection 69ZN(4), is that the court must activelydirect, control and manage the conduct of child-relatedproceedings. This will enhance the role of the judicialofficer, requiring them to have more control over the conduct ofthe hearing, rather than the parties and their representativescontrolling the conduct of the hearing.
354. The thirdprinciple, in subsection 69ZN(5), is that the proceedings must beconducted in a way that will safeguard the child or childrenconcerned against family violence, child abuse and child neglect;and safeguard the parties against family violence. Thisimplements recommendation 36 of the LACAReport and givesemphasis to the protection of the child in less adversarialproceedings. The more active case management approach inDivision 12A should ensure that allegations of violence and abuseare dealt with at an earlier stage in the court process. Itwill also ensure that judicial officers are better able to ensurethat appropriate evidence is before them. This will assistcourts to better address issues of child abuse and family violencein proceedings.
355. The fourthprinciple, in subsection 69ZN(6), is intended to ensure that theproceedings, as far as possible, are conducted in a way thatencourages the parents to focus on their child or children and ontheir ongoing relationship as parents. The aim is to promoteboth a focus on the child and cooperation between the parties toallow at least a positive working relationship between them, bothduring and after the proceedings so that they can communicate inorder to fulfil their responsibilities as parents. This meansthat the court, when it considers how to conduct the proceedings,must consider ways that it might minimise the level of conflictbetween the parents and ensure that the focus of both parents is onthe child.
356. Thisprinciple comes from concerns that a traditional adversarialapproach to litigation is harmful to children as it can entrenchconflict between parents. It can also lead to a focus on theparents and their perceptions of their rights rather than a focuson the child.
357. Thefifth principle, in subsection 69ZN(7), is intended to provide thatthe proceedings be conducted without undue delay and with as littleformality and legal technicality as possible. This does notmean that the proceedings will be conducted in a casual way thatdetracts from the seriousness of the orders being made. It isintended that the proceedings be conducted in a way that makes theparties feel comfortable and that ensures that the matter can befinalised in a timely way. It is intended that new subsection69ZN(7) go further than the current subsection 97(3) of the Act,which provides that in proceedings under the Act the court shallproceed without undue formality and shall endeavour to ensure thatthe proceedings are not protracted. This subsectionreplicates subsection 93(2) of the Children and Young Persons(Care and Protection) Act 1998 (NSW).
Section 69ZO- This Division also applies to proceedings inChambers
358. Newsection 69ZO provides that all of the duties and powers conferredon a ‘court’ throughout Division12A are alsoconferred on a Judge, Judicial Registrar, Registrar, FederalMagistrate or magistrate who is hearing a child-relatedproceeding in Chambers. This is to ensure that the provisionsof Division 12A apply to any proceedings or parts of proceedingsthat are heard in Chambers. Similar provisions exist in otherfederal court legislation.
359. Subsection97(1A) of the Act already makes provision for proceedings to beheard by a judge, Judicial Registrar, Registrar, Federal Magistrateor magistrate sitting in Chambers where there is authorisation todo so in the regulations or the applicable Rules.
360. The noteto section 69ZO clarifies that an order made in Chambers has thesame effect as an order made in open court.
Section 69ZP - Powers under thisDivision may be exercised on court’s own initiative
361. Newsection 69ZP provides that the court may exercise a power underDivision 12A either on the court’s own initiative or at therequest of a party to the proceedings. This gives the courtflexibility in discharging its obligation to actively manage casesin a way that encourages parents to focus on their child and ontheir ongoing relationship as parents and without undue delay orformality. It ensures a more inquisitorial approach by courtsto resolving children’s issues. This is appropriategiven that decisions must be made in the best interests of thechild not just on the position put to the court by theparties.
SubdivisionC - Duties and powers related to giving effect to theprinciples
Section 69ZQ- General duties
362. Newsubsection 69ZQ(1) lists a number of general duties that the courtmust carry out in giving effect to the principles in new section69ZN. These will ensure that cases are actively managed in away that encourages parents to focus on their child and on theirongoing relationship as parents and without undue delay orformality. They will also ensure the proceedings are notprotracted, and should help to reduce the overallcosts.
363. Paragraph69ZQ(1)(a) provides that the court will need to decide which of theissues identified in the application and in the proceedingsactually require full investigation and hearing, and which of theseissues may be disposed of summarily. As set out in paragraphs69ZQ(1)(b) and (c), the court will also have to decide the order inwhich issues are to be decided and give directions about the timingof steps that are to be taken in the proceedings. This willlead to better management of proceedings.
364. There is aspecific duty in paragraph 69ZQ(1)(d) to consider whether thelikely benefits of taking a step in the proceedings justify thecosts of taking it. This could be relevant in a situationwhere parties are proposing to use multiple experts or haveparticular evidence given by a variety of witnesses. In sucha situation, the court may decide that only one of the witnessesproposed will be sufficient to establish a particular fact in thecase.
365. Paragraph69ZQ(1)(e) requires the court to make appropriate use oftechnology, such as video-link, audio-link, or other electronictechnology. This provision supplements the existingdiscretion to use such technology at Division 2 of Part XI of theAct. This provision is intentionally wide, as it is difficultto predict the future development of technology which may assist infamily law proceedings.
366. Paragraph69ZQ(1)(f) provides that the court will again need to considerencouraging the parties to use a family dispute resolution orfamily counselling process if the court considers that isappropriate. This reinforces the Government’s intentionto ensure that family separations are dealt with outside the legalsystem wherever that is possible. It is not intended that thecourt’s role should be to mediate or to take part innegotiations.
367. However,it is intended that the court carry out a more active role increating opportunities for successful negotiations to take placebetween the parties, which may lead to consent orders being madeduring the proceedings on some or all of the issues in dispute.This is consistent with new Subdivision E in Division 1 of Part VIIof the Act, inserted by item 9 of Schedule 1. This subdivisioninserts new section60I into the Act which provides forcompulsory attendance at family dispute resolution in a range ofcirc*mstances, prior to lodging an application with thecourt. This is a key change to encourage a culture ofa*greement making and avoidance of an adversarial court system.
368. Paragraph69ZQ(1)(g) provides that the court must deal with as manyaspects of the matter as the court can on a single occasion, inorder to prevent parties having to attend at more court events thanis necessary. This will minimise the impact of theproceedings on the child, and help to reduce costs for theparties.
369. Paragraph69ZQ(1)(h) provides that the court must also consider dealing withthe matter without requiring the parties’ physical attendanceat court, where this is appropriate. It is envisaged thatparties may not need to attend court in two different types ofinstances - (1) where the use of appropriate technology (egvideo link) removes the need for a party’s physicalattendance in the court, and (2) where the court can make decisionson the papers (where this is appropriate) without it beingnecessary for the court to hear more about the matter before makingits decision. Any decision made by the court to deal with acase without the parties would need to be made in accordance withthe principles of natural justice and procedural fairness.
370. It isexpected that these duties will be fulfilled by the court at anearly stage of proceedings in order to give effect to theprinciples behind this active case management approach. Forexample, it is intended that as early as possible in theproceedings the court will identify the issues in dispute and makedirections to ensure that the case proceeds as expeditiously aspossible. However, it is recognised that the exact time atwhich these duties are fulfilled will differ between courtsexercising jurisdiction under the Act and between cases.
371. A numberof these general duties are modelled on the duties set out in Rule1.4 of Part 1 of the United Kingdom Civil Procedure Rules(40 th Update) .
372. Subsection69ZQ(2) provides that in giving effect to the five principles setout in section 69ZN, the court is not limited to undertaking onlywhat is required by subsection 69ZQ(1). The court may giveeffect to the principles in other ways.
373. Subsection69ZQ(3) provides that the court’s failure to comply withsubsection 69ZQ(1) will not invalidate an order.
Section 69ZR- Power to make determinations, findings and orders at anystage of proceedings
374. Section 69ZR makes clear that the court can make findings of fact,determine a matter arising in the proceeding, or make an order atany stage after the commencement of proceedings. This isintended to encourage the court to consider making findingsthroughout the hearing rather than leaving all findings to ajudgement at the end. This should assist in narrowing theissues between the parties and better focus the proceedings on thekey issues.
375. Subsection 69ZR(2) clarifies that this does not prevent the courtmaking a finding of fact, determining a matter arising in theproceeding, or making an order in relation to a particular issue atthe same time as making final orders.
376. Toavoid any doubt, subsection 69ZR(3) clarifies that the making of afinding of fact, determination or order under subsection 69ZR(1) isnot a reason for a judge, Judicial Registrar, Registrar, FederalMagistrate or magistrate to disqualify himself or herself from afurther hearing of the proceedings.
377. Theaim of this section is to provide the court maximum flexibility inhow it determines the best management of a particular case.
Section 69ZS- Use of family consultants
378. Section 69ZS provides that at any time during child relatedproceedings, the court may designate a family consultant as thefamily consultant in relation to the proceedings. A familyconsultant so designated will have the functions described insection 11A. The notes to section 69ZS provide signposts forreaders to sections 11A and 11F which are inserted by Schedule4. These sections relate to the role of family consultants inproceedings. This provision has been inserted to clarify thatit is envisaged that family consultants will play a much moreactive role in child-related proceedings than they traditionallyhave in other more adversarial proceedings. Theconsultants will be a key resource for the decision-maker inresolution of the issues.
SubdivisionD - Matters relating to evidence
Section 69ZT- Rules of evidence not to apply unless court decides
379. Newsection 69ZT is one of the key provisions in achieving lessadversarial court processes in child-related proceedings. Itprovides that the court must not apply the rules of evidencereferred to in subsection 190(1) of the Evidence Act inchild-related proceedings unless the court considers that thecirc*mstances are exceptional and it has taken into account thefactors set out in paragraph 69ZT(3)(b).
380. Theprovisions referred to in subsection 190(1) of the Evidence Act setout the general rules of evidence that apply to courtproceedings. 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).
381. Generally,these rules of the Evidence Act relate to the manner of givingevidence, the method of proof of documents (or other evidence) andthe exclusionary rules. Specifically, these rules deal withthe ways of giving evidence, examination-in-chief andre-examination, cross-examination, proof of documents, otherevidence, hearsay evidence, opinion evidence, admissions, evidenceof judgments and convictions, tendency and coincidence, credibilityand character.
382. It isintended that in each child-related proceeding, the court may, ifit considers that the circ*mstances are exceptional, apply theserules of evidence on an issue by issue basis in theproceedings. This means that, in some proceedings, some ofthese rules of evidence may be applied in relation to some parts ofthe proceeding but not others. It may also mean that in someproceedings, no rules of evidence are applied.
383. Subsection69ZT(2) clarifies that a court may give such weight, if any, as itthinks fit to evidence admitted as a consequence of the EvidenceAct not applying due to the operation of subsection 69ZT(1).It is appropriate that the court has this discretion where evidenceis admitted that would be inadmissible if not for the waiver of therules of evidence. This makes it clear that the court hasflexibility to determine the probative value of material that itrelies upon even where the rules of evidence would not otherwiseapply.
384. Paragraph69ZT(3)(b) provides that, when deciding whether to apply one ormore of the specified provisions of the Evidence Act to an issue inchild-related proceedings, the court must take into account anumber of factors. These include the importance of theevidence in the proceedings, the nature of the subject matter ofthe proceedings, the probative value of the evidence and the powersof the court to adjourn the hearing, to make another order or togive a direction in relation to the evidence. These factorsare found in subsection190(4) of the Evidence Act.Their inclusion also implements recommendation 37 of the LACAreport. The Committee was of the view that requiring thecourt to take these factors into account when deciding whether itshould apply the rules of evidence in child-related proceedingswould provide greater surety of justice for the parties to theproceedings.
385. The highthreshold for applying the rules of evidence is appropriate as thewaiving of the specified provisions of the Evidence Act is anintegral element of the active judicial management necessary toachieve less adversarial court processes in child-relatedproceedings. It also implements recommendation 37 of the LACAreport. However, the court is left with the discretion toapply the rules of evidence in the appropriate case where thethreshold is reached. For example the test of‘exceptional’ may be met in a serious contraventioncase where the court is considering a criminal penalty such asimprisonment. It may be appropriate to apply the rules ofevidence to such a proceeding due to the gravity of the potentialoutcome. Even where rules of evidence are applied, otherfactors related to child-related proceedings can continue tooperate, in particular the case management approach.
386. Subsection69ZT(4) clarifies that a court may give such weight, if any, as itthinks fit to evidence that is admitted as a consequence of itsdecision to apply a provision of the Evidence Act listed insubsection 69ZT(1). This makes clear the flexibility of thecourt in the consideration of these issues.
387. Subsection69ZT(5) puts beyond doubt that the waiver of provisions of theEvidence Act under subsection 69ZT(1), does not revive theoperation of a rule of common law or a law of a State or Territorythat would have been prevented from operating because of thoseprovisions. The intention is for the court not to apply suchrules in child-related proceedings. Where the court considersthat the circ*mstances are exceptional and that it is necessary inall the circ*mstances to do so, the court may apply one or more ofthe provisions of the Evidence Act mentioned in subsection69ZT(1).
Section 69ZU- Evidence of family consultants
388. Subsection69ZU provides that, without the agreement of the parties, the courtmust not take any opinions expressed by a family consultant intoaccount in determining the issues in a case, unless such opinionsare given as part of sworn evidence in a case. This clarifiesthe status of what is said by a family consultant on the occasionswhen a Judge chooses to include them in the proceedings. Thefunctions of family consultants are set out in new Part III of theAct inserted by Schedule 4. The court may appoint a familyconsultant prior to or during the proceedings with a view toassisting the parties to have a better understanding of the effectthat particular issues or behaviours may have on a child from asocial science perspective. The family consultant should alsobe able to provide parents with information on programs or servicesthat may assist them.
Section 69ZV- Evidence of children
389. Section100A from Part XI (Procedure and Evidence) of the Act has beenrepealed and relocated to the new Division 12A in Part VII, and isnow the new section 69ZV. It has been moved to the newDivision because it relates to evidence in children’sproceedings under Part VII.
390. Section69ZV provides that, despite any other Act or rule of law, evidenceof a representation made by a child about a matter that is relevantto the welfare of the child or another child, which would nototherwise be admissible as evidence because of the law againsthearsay, is not inadmissible solely because of the law againsthearsay in any child-related proceedings. A‘representation’ includes an express or impliedrepresentation which can be either oral or in writing, and arepresentation inferred from conduct - see subsection 69ZV(5).
391. While theeffect of 69ZV is that, in many cases, rules of evidenceincluding the hearsay rule would not apply in child-relatedproceedings, section 69ZV is necessary in those exceptional caseswhere a court considers that it is necessary to apply rules ofevidence. In those cases, the rules related to hearsay will stillnot be relevant in relation to evidence of representations made bya child. This provision is particularly relevant for the roleof independent children’slawyers.
392. The effectof subsection 69ZV(5) is to confine the application of thisprovision to children under 18. This is appropriate as afterattaining the age of 18 the child in question would be able toprovide evidence to the court directly. Other parts ofPart VII, such as provision of child maintenance, do apply tochildren who are over 18 in certain circ*mstances.
Section 69ZW- Evidence relating to child abuse or family violence
393. Section69ZW gives the court the power to make an order in child-relatedproceedings requiring a prescribed State or Territory agency toprovide the court with documents which contain information aboutone or more of the following:
· any notifications to the agency of suspected abuse of the child orfamily violence affecting the child
· any assessments by the agency of investigations into a notificationof that kind,
· any reports commissioned by the agency in the course ofinvestigating a notification.
394. Theprescribed agencies will include the child welfare agencies of theStates and Territories and police departments as they are likely tobe the agencies which would conduct investigations and hold reportsrelated to issues of child protection and family violence.They will be prescribed in the Family Law Regulations1984 . Section 69ZW implements recommendation 11 of theLACA Committee. The intention is to ensure that whereallegations of violence or abuse are made, the court has as muchinformation as possible relevant to those allegations when making adetermination about what is in the best interests of thechild.
395. Subsection69ZW(3) clarifies that nothing in the order is to be taken torequire the agency to provide the court with documents orinformation not in the possession or control of the agency; ordocuments or information that include the identity of the personwho made the notification. If the agency does providedocuments or information that include the identity of the personwho made the notification, disclosure of these documents orinformation can only be made in the circ*mstances set out insubsection 69ZW(6).
396. Subsection69ZW(4) ensures that a law of a State or Territory has no effect tothe extent that it would hinder or prevent an agency from complyingwith the order. The intention is that subsection 69ZW(4) willprevail to the extent of any inconsistency between it and the lawof a State or Territory. This will ensure that courtsexercising family law jurisdiction are able to compel the sameinformation from all States and Territories in spite of thedifferences in their child welfare legislation.
397. This isintended to assist the court to overcome issues that arose in thecase of Northern Territory v GPAO and others (1998) 196 CLR553. In this case the High Court found that the existingprovisions of the Act did not override provisions in the NorthernTerritory child welfare legislation such that the Family Court ofAustralia could not compel the Northern Territory welfare authorityto produce any documents it held concerning the protection of achild who was the subject of a parenting case. This decisionhas limited the evidence available to the court to determine whatis in a child’s best interests in some cases. Section69ZW will address this and extend to information about familyviolence.
398. Subsection69ZW(5) provides that the court must admit into evidence anydocuments or information provided in response to the order on whichthe court intends to rely. This ensures that where the courtintends to rely on information it has received relating to anallegation of abuse or violence, the parties are aware of theinformation or allegation and have an opportunity to respond.This is in accordance with principles of natural justice.
399. Subsection69ZW(6) provides that where an agency has provided documents orinformation that include the identity of the person who made thenotification of suspected abuse or family violence, the court mustnot disclose the identity of the person unless he or she consentsto the disclosure or the court is satisfied that the identity orinformation is critically important to the proceedings and that failure to make the disclosurewould prejudice the proper administration of justice .This provision is found in section 29 of the Children andYoung Persons (Care and Protection) Act 1998 (NSW). Itrecognises that it is a matter of public policy that the identityof a notifier should be protected in most circ*mstances to ensurethat there is no disincentive to notification of child protectionissues.
400. Subsection69ZW(7) ensures that before any disclosure is madeunder subsection69ZW(6), the agency that provided theidentity of the person who made the notification is notified andgiven an opportunity to respond. This provision addresses theconcerns expressed by some State agencies about the sensitivitiesin release of the identity of the notifier. In most cases theidentity of the notifier will not be relevant - what is relevant iswhat the findings were about the child protectionissue. Protection of the identity of the notifierensures that there is no disincentive to report suspected childprotection issues. This will ensure that there is anappropriate process to assess that the information is criticallyimportant and that failure to make the disclosure would prejudicethe proper administration of justice.
Section 69ZX- Court’s general duties and powers relating toevidence
401. Section69ZX sets out the court’s general duties and powers relatingto evidence.
402. Subsection69ZX(1) sets out a list of actions that the court may carry out ingiving effect to the five principles for conducting child-relatedproceedings in section 69ZN. This provision supplements theduties in section 69ZQ which must be followed in giving effect tothe principles and to ensure active management of children’smatters to minimise the effect of the proceedings on children andto promote a cooperative parenting relationship betweenparents.
403. The listof actions in subsection 69ZX(1) includes the court givingdirections or making orders about:
· the matters in relation to which the parties are to presentevidence
· 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 provideevidence
- the number of experts who may provide evidence in relationto a matter, and
- how an expert is to provide the expert’sevidence.
404. Paragraph69ZX(1)(e) also gives the court the power to question and seekevidence or the production of documents or things from parties,witnesses and experts on matters relevant to the proceedings.
405. Subsection69ZX(2) provides a non-exhaustive list of further types ofdirections and orders that the court may make in child-relatedproceedings. This list is not intended to limit the actionsthat the court may make under subsection 69ZX(1) in giving effectto the principles for conducting child-related proceedingsset out in section 69ZN. The list is also not intendedto limit section 69ZR, which is the section that clarifies that thecourt may make determinations, findings and orders at any stage ofthe proceedings.
406. Undersubsection 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 presentedby a party
· that evidence of a particular kind not be presented by a party
· limiting, or not allowing, cross-examination of a particularwitness, or
· limiting the number of witnesses who are to give evidence in theproceedings.
407. A numberof these provisions come from the United Kingdom Civil ProcedureRules (40 th Update) . They are intended toallow the court to play a much greater role in managing the conductof the proceedings.
408. Subsection69ZX(3) inserts a modified version of section 86 of the NativeTitle Act 1993 . It provides that the courtmay, in child-related proceedings, receive into evidence thetranscript of evidence in any other proceedings before a court ortribunal and draw any conclusions of fact from the transcript thatit thinks proper. The court may also adopt anyrecommendation, finding, decision or judgment of any court ortribunal.
409. Thisamendment implements recommendation 5 of the Family LawCouncil’s December 2004 Report, Recognition of TraditionalAboriginal and Torres Strait Islander Child-Rearing Practices:Response to Recommendation 22: Pathways Report, Out of theMaze . The Report found that such a provision couldprovide a court with the flexibility to draw on relevant evidenceadduced in other proceedings in other courts to informdecision-making in the best interests of the child pursuant tosubsection 68F(2). It suggested that, in the case of anAboriginal or Torres Strait Island child, such an approach wouldassist a court in informing itself of the content of the relevantkinship obligations and child-rearing practices wherever suchreliable information exists. In this regard, the provision isrelevant to new section 61F (inserted by item 14 in Schedule 1)which requires the court to have regard to the kinship obligationsand child-rearing practices that are relevant to an Aboriginal orTorres Strait Islander child.
410. Thisprovision does not apply only to proceedings concerning anAboriginal or Torres Strait Islander child. It applies to allchild-related proceedings. In this respect, the provisionimplements recommendation 48 of the LACA Report. TheCommittee was of the view that extending the provision to allchildren would be helpful and may assist in addressing issuessurrounding claims of family violence and abuse. The note tosubsection 69ZX(3) clarifies that the subsection may beparticularly relevant for Aboriginal or Torres Strait Islanderchildren.
Item 5- Section 100A
411. Item 5repeals section 100A of Part XI of the Act, and relocates thecontent of section 100A to new section 69ZV. It is beingmoved because it only related to evidence in children’sproceedings under Part VII.
412. A numberof other provisions in Part XI of the Act will apply to the newDivision, however because they relate not only to Part VIIproceedings but also to other proceedings under the Act, they willremain in their current position in Part XI.
Item 6 - At the end of section102A
413. Item 6inserts a note at the bottom of section 102A in Part XI of theAct. This section deals with the restrictions on theexamination of children. In particular, subsection 102A(4)deals with the circ*mstances where the court may admit evidencethat is otherwise inadmissible. The note clarifies that newsection 69ZV (previously section 100A) is relevant to evidence of arepresentation by a child if the inadmissibility of the evidencewould otherwise be affected by the law against hearsay.
Item 7- Part XI (heading)
414. Item 7adds a note after the heading for Part XI of the Act, which dealswith procedure and evidence, to clarify that new Division 12A ofPart VII has provisions about procedure and evidence that apply tochild-related proceedings. This is to assist self-representedlitigants, and readers generally, locate relevant provisions in theAct.
Part 2- Application of amendments
Item 8- Application of amendments
415. Item 8sets out when the provisions in Part 1 of Schedule 3 willcommence. It allows the provisions in Part 1 of Schedule 3 tobe applied to proceedings that commence prior to 1 July 2006 (whichis the date the provisions themselves commence) if the partiesconsent and the court grants leave. This change is fair forboth the parties and the court. Parties who have commencedproceedings prior to 1July2006, particularly thosewhose cases have not progressed far, may well see the benefit ofthe new less adversarial approach being applied to theirmatters. However, as consent of both parties is required,there will be no unfairness to parties who have started preparingtheir case in accordance with the current system.
416. The courtswill also be able to assess the impact on resources of changing theprocedures for existing proceedings. Where an application isfiled just prior to commencement of the provisions in Part 1 ofSchedule 3, it may be more efficient for the new provisions toapply. Where a case is nearing completion, the court and/or partiesmay determine that it would be more efficient for it remain underthe current system.
SCHEDULE 4- CHANGES TO DISPUTE RESOLUTION AND FAMILYSERVICES
417. Schedule 4of the Bill amends the counselling and dispute resolutionprovisions in the Act to support the Government's policy ofensuring that separating and divorcing parents have access toquality counselling and dispute resolution services without theneed to go to court. In particular, the distinction betweenfamily counselling and family dispute resolution, as set out insections 10B and 10F at Item 32, facilitates the introduction ofcompulsory dispute resolution for most parents seeking an orderunder Part VII of the Act (as provided by section 60I, at Item 9 ofSchedule 1).
418. Schedule 4also distinguishes services available in the community from thoseprovided by the courts, to assist in clarifying the different rolesplayed by each in assisting people affected by separation anddivorce.
419. Aframework for the accreditation of family counsellors, familydispute resolution practitioners and workers in other AustralianGovernment funded family services is also inserted by theBill. Competency-based accreditation standards, are currentlybeing developed by the Community Services and Health IndustrySkills Council (CSHISC). The accreditation standards,expected to be in place by mid-2006, will form the minimumrequirements for family counsellors, family dispute resolutionpractitioners and other services, and provide a mechanism forensuring the quality of family services provided in the family lawsystem.
420. Provisionsin the Act that relate to counselling or dispute resolution whichare outdated, unnecessary, or which do not reflect current practiceor government policy are amended or removed by Schedule4.
421. Schedule 4also introduces amendments to assist in protecting the names ofservices funded by the Government to provide assistance and supportto people in the family law system, and the symbols (or logos) usedto identify these services. This protection is needed inorder to ensure that the public is not misled as to the nature ofservices being provided in the family law system.
422. Consistentand consequential changes are made to the Federal MagistratesAct 1999 , the Income Tax Assessment Act 1997 and the Marriage Act 1961 .
Part 1 -Changes to approval of organisations
423. Currently,Part II of the Act sets out the process for the approval ofcounselling and mediation organisations. The amendments inthis Part will remove the requirement that only organisations thatare voluntary (that is, organisations that operate on a non-profitbasis) will be able to apply to the Minister for approval andfunding as a counselling or mediation organisation.
424. Thisreflects the Government’s policy intention that a wide rangeof organisations be able to apply for approval and funding as acounselling or mediation organisation. As the first 15Family Relationship Centres are expected to commence operation inmid-2006, the amendments made in this Part must take place as soonas possible to allow funding to be provided if an organisationother than a voluntary organisation applies for and is selected toreceive funding.
425. Existingapproved services will not be affected by the changes to theapproval process as transitional arrangements for theseorganisations are provided in Part 4 of Schedule 4.
Item 1:Subsection 4(1) (definition of voluntaryorganisation )
426. Currentlyonly a ‘voluntary organisation’ (that is, anorganisation that operates on a non-profit basis) is eligible forapproval 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 beremoved by the Bill (see items 150 and 153), the definition of‘voluntary organisation’ is no longer required in theAct. Accordingly, this item repeals the definition of‘voluntary organisation’.
Items 2 and 5:Subsection 13A(1) and 13B(1)
427. Sections13A and 13B of the Act set out the process by which organisationsmay gain the approval of the Minister as ‘approvedcounselling organisations’ or ‘approved mediationorganisations’ under the Act.
428. Currently,a ‘voluntary organisation’ (that is, an organisationthat operates on a non-profit basis) may apply to the Minister forapproval as a counselling organisation (subsection 13A(1)) or as amediation organisation (subsection 13B(1)).
429. Theseitems repeal subsections 13A(1) and 13B(1). The repeal willallow any organisation (whether operating on a non-profit basis ornot) to be approved and receive funding as a counselling ormediation organisation. The requirement to apply for approvalor funding will also be removed from the Act but this will notlimit the ability of the Government to call for applications fororganisation to be approved or receive funding for particularservices.
Items 3 and 6: Subsections 13A(2) and13B(2)
430. Theseitems make a minor consequential amendment as a result of therepeal of subsection 13A(1) by item 2 and subsection 13B(1) by item5.
Items 4 and 7:Paragraphs 13A(2)(b) and 13B(2)(b)
431. Currentlysubsections 13A(2) and 13B(2) of the Act provide that the Ministermay approve an organisation as a counselling or mediationorganisation only if he or she is satisfied that:
· the organisation is willing and able to engage in family and childcounselling, and
· the whole, or a substantial part, of the organisation’sactivities consist, or will consist, of family and childcounselling.
432. Theseitems amend subsection 13A(2) and 13B(2) to remove the requirementfor family and childcounselling or family and child mediation to form ‘the wholeor a substantial part’ of the organisation’sactivities in order for that organisation to be approved under theAct. The new requirement will be that theorganisation’s activities ‘include, or willinclude’ family and child counselling or family and childmediation (as appropriate).
433. Thisamendment recognises that many organisations offer a range ofservices to people requiring assistance, including family and childcounselling, family and child mediation, social work etc and it maynot be possible to characterise any single element of theseservices as comprising the whole, or a substantial part of thatorganisation’s activities.
Part 2 -Protection of names
Family Law Act1975
Item 8: After Part 1
Part 1A - Protection of Names
434. This iteminserts a new Part 1A into the Act. This Part will ensurethat the names of services funded by the Government to provideassistance and support to people in the family law system (such asFamily Relationship Centres), and the symbols (or logos) used toidentify these services are not used in an unauthorised manner thatmight mislead or deceive the public.
435. As thefield of family law is a highly emotional area in which people maynot always be in a position to objectively or thoroughly assess thecredentials of service providers, consumer protection is ofcritical importance.
Section9A Use of protected names andsymbols
436. Section 9Ais designed to ensure the public is not misled by unauthorised useof names or symbols that designate services funded by theGovernment (for example, Family RelationshipCentres).
437. A personmust not use or apply a ‘protected name’ (or a name soclosely resembling a protected name as to be likely to be mistakenfor it) or a ‘protected symbol’ (or a symbol so closelyresembling a protected symbol as to be likely to be mistaken forit) in the manner specified in subsection 9A(1) without theMinister’s written consent. The penalty for a breach ofthis 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 thepenalty for a breach of section 9A is a fine of $3,300).
438. Theprotected names and protected symbols will be prescribed in theRegulations.
439. Thissection does not affect rights conferred by law on a person inrelation to a registered trademark or a design registered under the Designs Act 2003 , that was registered immediately before thecommencement of the regulation prescribing a protected name orprotected symbol.
440. Additionally, this section does not affect the use, or rightsconferred by law relating to the use, of a name or symbol by aperson in a particular manner if, immediately before thecommencement of the regulation prescribing a protected name orprotected symbol, that person:
2. was using that name or symbol in good faith in that manner, or
3. would have been entitled to prevent another person from passing offgoods or services as the goods or services of the first-mentionedperson, by means of the use of that name or symbol.
Part 3- Changes to dispute resolution
Family Law Act1975
Item 9: Subsection 4(1)
441. This itemmoves the definition of ‘abuse, in relation to achild’, which currently appears in sections 19N, 60D, 62F and70NI of the Family Law Act 1975 (the Act) into section 4 ofthe Act. Section 4 of the Act, Interpretation ,contains definitions of terms used throughout the Act. Theinclusion of the definition of ‘abuse’ in this sectionassists in consolidating definitions employed in the Act.This should assist users of the Act to interpret and understand thelegislation, as the Interpretation section is the logical referencepoint for those seeking clarification of terms used in theAct.
442. Thedefinition of abuse is unchanged from that currently employed inthe Act. The definition limits the meaning of‘abuse’ in relation to a child in the Act to unlawfulassault and child sexual abuse.
443. A widerconcept of ‘harm’ is introduced in sections 10C and 10Kof the Bill. These sections provide that family counsellorsand family dispute resolution practitioners, respectively, mustdisclose communications made to them in their professional capacitywhere the disclosure is considered necessary to protect a childfrom the risk of harm, whether physical or psychological.
Item 10: Subsection4(1)
444. This iteminserts a definition of ‘Accreditation Rules’ intosubsection 4(1) of the Act. This definition provides that‘Accreditation Rules’ refers to the regulations madeunder section 10A.
Item 11: Subsection 4(1) (definition of approved counselling organisation )
445. Currentlythe Attorney-General may approve counselling organisations undersection 13A of the Act. As set out in relation to section10A, in order to ensure the quality of services delivered by familycounsellors, family dispute resolution practitioners and workers inGovernment funded children’s contact services,competency-based Accreditation Rules are currently being developedby the CSHISC. The Accreditation Rules will form the minimumrequirements for family counsellors, family dispute resolutionpractitioners and workers in funded children’s contactservices and will largely replace the current situation wherefamily and child counsellors are able to be authorised by approvedorganisations. As a result of this change, and the removal ofthe requirement for organisations to be approved before they may befunded under the Act due to the repeal of section 13H of the Act,approved organisations will no longer serve any purpose and will beremoved from the Act by the Bill. Accordingly, this itemrepeals the definition of approved counselling organisation.
446. To ensurethat professionals who are currently delivering family and childcounselling and family and child mediation are able to continue tooffer these services (which are termed ‘familycounselling’ and ‘family dispute resolution’under the Bill - see sections 10A and 10H in this Schedule)without interruption on the introduction of the accreditationregime a transition period is provided, during which theAttorney-General will continue to have power to approveorganisations, as set out in Part 4 of this Schedule. (Item118 provides that the transition period begins at the time Part 3of this Schedule commences (this is a date to be fixed byProclamation, and is expected to be 1July 2006) and ends onthe day prescribed by regulations made for the purpose of thisdefinition. It is anticipated that the transition period willbe at least three years in duration.)
Item 12:Subsection 4(1) (definition of approved mediationorganisation )
447. Currentlythe Attorney-General may approve mediation organisations undersection 13B of the Act. As set out in relation to section10A, in order to ensure the quality of services delivered by familycounsellors, family dispute resolution practitioners and workers inGovernment funded children’s contact services,competency-based Accreditation Rules are currently being developedby the CSHISC. The Accreditation Rules will form the minimumrequirements for family counsellors, family dispute resolutionpractitioners and workers in funded children’s contactservices and will largely replace the current situation wherefamily and child counsellors are able to be authorised by approvedorganisations. As a result of this change, and the removal ofthe requirement for organisations to be approved before they may befunded under the Act due to the repeal of section 13H of the Act,approved organisations will no longer serve any purpose and will beremoved from the Act by the Bill. Accordingly, this itemrepeals the definition of approved mediation organisation.
448. To ensurethat professionals who are currently delivering family and childcounselling and family and child mediation are able to continue tooffer these services (which are termed ‘familycounselling’ and ‘family dispute resolution’under the Bill - see sections 10B and 10F in this Schedule)without interruption on the introduction of the accreditationregime a transition period is provided, during which theAttorney-General will continue to have power to approveorganisations, as set out in Part 4 of this Schedule. (Item118 provides that the transition period begins at the time Part 3of this Schedule commences (this is a date to be fixed byProclamation, and is expected to be 1July 2006) and ends onthe day prescribed by regulations made for the purpose of thisdefinition. It is anticipated that the transition period willbe at least three years in duration.)
Item 13:Subsection 4(1)
449. This iteminserts a definition of ‘arbitration’ into Section 4 ofthe Act, the Interpretation section. The definition of‘arbitration’ inserted here directs the reader tosection 10S, where the full definition of the term is setout. This approach has been taken as the definition ofarbitration is best read in context with the definition of‘arbitrator’ (which appears in section 10T) and forconsistency with the approach taken in relation to familycounselling and family dispute resolution (at Divisions 1 and 2 ofnew Part II) . The marker definition has been placed insubsection 4(1) as those accessing the Act will often consult thisgeneral Interpretation section when seeking guidance on termsemployed in the Act.
450. Nosubstantive changes have been made to the arbitration provisions ofthe Act.
Item 14: Subsection 4(1) (definition of arbitrator )
451. This itemrepeals the current definition of ‘arbitrator’ andinserts a new definition of ‘arbitrator’ into Section 4of the Act, the Interpretation section. The definitionof ‘arbitrator’ inserted here directs the reader tosection 10T, where the full definition of the term is setout. This approach has been taken as the definition ofarbitrator is best read in context with the definition of‘arbitration’ (which appears in section 10S) and forconsistency with the approach taken in relation to familycounselling and family dispute resolution (at Divisions 1 and 2 ofnew Part II). The marker definition has been placed insubsection 4(1) as those accessing the Act will often consult thisgeneral Interpretation section when seeking guidance on termsemployed in the Act.
452. Nosubstantive changes have been made to the arbitration provisions ofthe 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 andchild counsellor, family and child mediation, family and childmediator, marriage counselling, private mediator and insertdefinitions of family counselling, family counsellor, familydispute resolution , family dispute resolutionpractitioner )
453. At presentthe Act uses the umbrella term ‘primary disputeresolution’ to cover almost every form of non-judicialintervention in family conflicts, including counselling, mediationand arbitration. The term is poorly understood in thecommunity and its use in the legislation makes it difficult todifferentiate specific types of intervention.
454. To assistunderstanding, the Bill removes the term ‘primary disputeresolution’ and clearly identifies more specific forms ofintervention. As part of this change, the terms in theseitems will be removed from the Act and new terms ‘familycounselling’ (section 10A) and ‘family disputeresolution’ (section 10H) will be introduced.
455. Theamendment made by these items add the definitions of ‘familycounselling’, ‘family counsellor’, ‘familydispute resolution’ and ‘family dispute resolutionpractitioner’ to direct the reader to sections 10A, 10B, 10Hand 10J respectively where the full definitions of the terms areset out. The marker definitions have been placed insubsection 4(1) as those accessing the Act will often consult thisgeneral Interpretation section when seeking guidance on termsemployed in the Act.
Item 23: Subsection 4(1)
456. The courtis moving to a process in which a ‘family consultant’will be assigned to each case in the court involving children, andwill manage the case, providing a continuing service, as it movesthrough the court process. The new Part III of the Bill dealswith the functions of ‘family consultants’, who will beappointed by the Family Court of Australia, the Family Court ofWestern Australia or the Federal Magistrates Court.
457. This iteminserts a definition of ‘family consultant’ intoSection 4 of the Act, the Interpretation section. Thedefinition of ‘family consultant’ inserted here directsthe reader to section 11B, where the full definition of the term isset out. This approach has been taken as the definition offamily consultant is best read in context with the functions offamily consultants, so it appears in a section alongside thisterm. The marker definition has been placed in subsection4(1) as those accessing the Act will often consult this generalInterpretation section when seeking guidance on terms employed inthe Act.
Item 29:Subsection 4(1)
458. ‘Post-separation parenting program’ is currentlydefined 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 iskept by the Attorney-General’s Department. As this listhas no relation to the quality of services provided, it has littlevalue and is being removed from the Act. As a result thedefinition of ‘post-separation parenting program’ hasbeen amended to remove the reference to ‘a provider’.Instead the quality of services provided by post-separationparenting programs will be addressed by requiring these services tobe funded by the Australian Government (whether directly or as amember of a consortium). Accountability requirements set outin the Government’s funding agreements will assist inensuring a level of quality in the services that are provided byorganisations providing such post-separation parentingprograms.
459. Thenew definition of ‘post-separation parenting program’has been placed in subsection 4(1) as those accessing thelegislation will often consult this general Interpretation sectionwhen seeking guidance on terms employed in the Act.
Item 30:Subsection 4(1) (definition of private arbitration )
460. Currently the Act refers to arbitration as ‘privatearbitration’ and ‘section 19D arbitration’.The term ‘private arbitration’ is not sufficientlyexplanatory, and may mislead, to the extent that it implies thatthe court has no involvement. In order to address theseissues this item repeals the definition of ‘privatearbitration’. It is replaced by the term‘relevant property and financial arbitration’, which isdefined at paragraph 10S(2)(b). This new term assistsunderstanding by clearly stating the types of issues that may bedealt with in arbitration.
Item 32: Subsection 4(1)
461. Currently the Act refers to arbitration as ‘privatearbitration’ and ‘section 19D arbitration’.The term ‘private arbitration’ is not sufficientlyexplanatory, and may mislead, to the extent that it implies thatthe court has no involvement. In order to address theseissues the term ‘private arbitration’ is replaced bythe term ‘relevant property and financialarbitration’. This new term assists understanding byclearly stating the types of issues that may be dealt with inarbitration.
462. This iteminserts a definition of ‘relevant property or financialarbitration’ into Section 4 of the Act, the Interpretation section. The definition of‘relevant property or financial arbitration’ insertedhere directs the reader to subsection 10S(2), where the fulldefinition of the term is set out. This approach has beentaken as the definition of ‘relevant property or financialarbitration’ is best read in context with the definition of‘arbitration’ in order to be properly understood, so itappears in a section alongside these terms. The markerdefinition has been placed in subsection 4(1) as those accessingthe Act will often consult this general Interpretation section whenseeking guidance on terms employed in the Act.
463. Nosubstantive changes have been made to the arbitration provisions ofthe Act.
Item 33: Subsection 4(1)
464. Currentlythe Act refers to arbitration as ‘private arbitration’and ‘section 19D arbitration’. The term‘private arbitration’ is repealed by Item 30 andreplaced by ‘relevant property or financialarbitration’, a definition of which is inserted by Item27.
465. In orderto simplify the Act, current Parts II and III of the Act aredeleted and replaced by a new structure that groups provisionsrelating to non-judicial interventions logically, by topic.This restructure of the Act involves the repeal, modification,relocation and/or renumbering of current sections relating tocounselling, dispute resolution and arbitration. As a resultof this restructure section 19D has been removed from theAct. The substance of section 19D has been placed in newsection 13E.
466. To reflectthis change, this item inserts a definition of ‘section 13Earbitration’ into Section 4 of the Act, the Interpretationsubsection 10S(2), where the full definition of the term is setout. This approach has been taken as the definition of‘s13E arbitration’ is best read in context with thedefinition of ‘arbitration’ in order to be properlyunderstood, so it appears in a section alongside these terms.The marker definition has been placed in subsection 4(1) as thoseaccessing the Act will often consult this general Interpretationsection when seeking guidance on terms employed in the Act.
467. Nosubstantive changes have been made to the arbitration provisions ofthe Act.
Item 34: Subsection 4(1) (definition of welfare officer )
468. The courtis moving to a process in which a ‘family consultant’will be assigned to each case in the court involving children, andwill manage the case, providing a continuing service, as it movesthrough the court process. The new Part III of the Bill dealswith the functions of ‘family consultants’, who will beappointed by the Family Court of Australia, the Family Court ofWestern Australia or the Federal Magistrates Court. Thefunctions of family consultants are set out at section 11A.These functions include those that are currently performed bywelfare officers (eg providing family reports). As a result,the definition of welfare officer is no longer needed, and isrepealed by this item.
469. The Billdoes not affect the role played by ‘child welfareofficers’ (as defined at s60D of the Act) who provide childprotection services for the States and Territories.
Item 35:After subsection 4(1)
470. This iteminserts a definition of the phrase ‘a person or peopleinvolved in proceedings’ in subsection 4(1AA) of theAct. The Bill does not impose any obligations on‘people involved in proceedings’. The use of theterm allows assistance to be given to people, including children,who may be affected by the proceedings, but who are not actuallyparties to the proceedings.
471. The phrase‘a person or people involved in proceedings’ is used inthe following provisions of the Bill:
o Section 11A of the Act -provides that the functions of family consultants include‘assisting and advising’ people involved inproceedings, and helping them to resolve theirdisputes.
o Subsection 12F(2) of the Act -requires the principal executive officer of a court withjurisdiction under the Act to provide information documents onfamily counselling and family dispute resolution to a personinvolved in proceedings, if requested. (Under subsection12F(1) the court has an obligation to give information documents toanyone considering instituting proceedings, without being asked todo so).
o Subparagraph 123(1)(s)(iii) of theAct - allows rules of court to be made in relation to thegiving of advice and assistance by family consultants (as persection 11A).
o Subparagraph 123(1)(sd)(iii) of theAct - allows rules of court to be made in relation to theprocedures to be followed by people involved in proceedings whenreceiving services from a family consultant (as per section11A).
o Paragraph 87(2)(c) of the FederalMagistrates Act 1999 - allows rules of court to be made for theFederal Magistrates Court in relation to the giving of advice andassistance by family consultants (as per section 11A of theAct).
Item 36: Parts II and III
472. In orderto simplify the Act, Parts II and III of the Act are repealed andreplaced by a new structure that groups provisions relating tonon-judicial interventions logically, by topic. New Part IIwill deal with non-court based services (including accreditation,family counselling, family dispute resolution andarbitration). New Part III will deal court based services(also known as family consultants). New Part IIIA will dealwith obligations to inform people about non-court based servicesand the court’s procedures. New Part IIIB will set outthe court’s powers in relation to court and non-court basedfamily services
473. This willassist users of the Act by consolidating all provisions dealingwith a particular area (for example, the obligations imposed onvarious groups to inform people about non-judicial interventionsavailable to assist those in the family law system) in one placewithin the Act.
Section10A Accreditation Rules
475. Competency-based accreditation standards are currently beingdeveloped by the CommunityServices and Health Industry Skills Council (CSHISC) and areexpected to form the minimum requirements for the standards in theAccreditation Rules to be met by family counsellors, family disputeresolution practitioners and workers in funded children’scontact services.
476. Therequirements of the Accreditation Rules will apply to individualpractitioners and will replace the current situation where familyand child counsellors and family and child mediators are eitherauthorised by the court or an approved organisation.
477. To ensurethat professionals who are currently delivering family and childcounselling and family and child mediation are able to continue tooffer these services (which are termed ‘familycounselling’ an ‘family dispute resolution’ underthe Bill - see sections 10B and 10F, above) withoutinterruption on the introduction of the accreditation regime, aperiod of time, referred to as the ‘transition period’will be given during which courts, approved organisations andorganisations designated by the Attorney-General will be able toauthorise family counsellors and family dispute resolutionpractitioners. Professionals so authorised will be taken tobe accredited during the transition period.
478. In thetransition period the Attorney-General will retain the ability toapprove family counselling and family dispute resolutionorganisations (although the prerequisites for, and process of,approval, will be amended as per Part 4 of this Schedule). At thecessation of the transition period the concept of ‘approvedorganisations’ will be removed from the Act. From thattime all family counsellors and family dispute resolutionpractitioners will need to meet the accreditation standardsprescribed in the Regulations.
479. Subsection10A(2) sets out examples of matters that the Accreditation Rulesmay deal with. It is expected that not all of the possibleexamples will form requirements for all categories of workers, orthat all the listed examples will necessarily form part of theRegulations.
480. Forexample, it is expected that accredited family dispute resolutionpractitioners will need to be registered as the court and otherservices will need to know to whom they can refer clients toreceive family dispute resolution. Accredited family disputeresolution practitioners are the only category of worker that willbe able to provide certificates under section 60I of the Act.Section 60I provides that a court must not hear an application fora parenting order unless (subject to some exceptions) the applicantfiles a certificate from a family dispute resolution practitionerthat states that the applicant has attended family disputeresolution, or that the applicant did not attend, but this failurewas due to the failure of the other party to attend.
481. Similarly,only accredited family counsellors or family dispute resolutionpractitioners are able to provide the information required undersection 60J (which provides that where a person is not required toattend dispute resolution due to child abuse or family violence,the court must not hear an application for a parenting order unlessthe applicant makes a declaration that a family counsellor orfamily dispute resolution practitioner has provided him or her withinformation on the services and options available).
482. As aresult of the demand for family counselling and family disputeresolution services that may flow from these sections (and from theGovernment’s family law reforms more broadly) unscrupulousprofessionals may seek to deceive members of the public as to theiraccreditation status. Protection of consumers from dishonestbehaviour is always important, and is especially crucial in familylaw, as it is a highly emotional area in which people may notalways be in a position to objectively or thoroughly assess thecredentials of service providers. For this reason, theAccreditation Rules may deal with individuals or organisations whomake false or misleading representations about a person’saccreditation status.
Part II -Division 2 - Family counselling
Section 10BDefinition of family counselling
483. Currently‘family and child counselling’ contains elements ofprocesses concerned both with psychological health andrelationships issues and those that aim to resolve disputes(including conciliation - see section 10F for furtherinformation). The two types of processes needed to be clearlydelineated in order to allow the successful introduction ofcompulsory dispute resolution (concerned only with resolution ofdisputes).
484. In orderto achieve such a distinction, the Bill introduces two new, moredescriptive terms - ‘family counselling’, inserted bythis section and ‘family dispute resolution’ (definedat section 10F). The definition of ‘familycounselling’ is based on the National Alternative DisputeResolution Advisory Council’s (NADRAC) ‘Glossary ofTerms’.
Section 10CDefinition of family counsellor
485. Section10C provides a definition of persons who may be regarded as familycounsellors. The first instance is where a person isaccredited as a family counsellor under the AccreditationRules.
486. The FamilyCourt of Australia, the Federal Magistrates Court and the FamilyCourt of Western Australia will be able to authorise people to actas family counsellors, as will organisations designated by theAttorney-General.
487. To ensurethat professionals who are currently delivering family and childcounselling and family and child mediation are able to continue tooffer these services without interruption Part 4 of Schedule 4provides for transitional arrangements.
488. Undersubsection 10C(2) the Attorney-General is required to publish, atleast annually, a list of the organisations that he or she hasdesignated under paragraph 10C(1)(b). This provision ensuresthat the public is able to easily access this information, in theinterests of transparency.
489. Subsection10C(3) provides that an instrument made under this section is not alegislative instrument. A ‘legislativeinstrument’ is defined at section 5 of the LegislativeInstruments Act 2003 . In general terms, a legislativeinstrument is a written document that is of a legislative characterand that is made in the exercise of a power designated byParliament. Requirements relating to registering, tabling,scrutinising and sunsetting all Commonwealth legislativeinstruments are imposed under the Legislative InstrumentsAct. Subsection 10C(3) has been included to assist readers ofthe Act, so that they are aware that the requirements of imposed bythe Legislative Instruments Act do not apply to instruments madeunder this section.
Section 10DConfidentiality of communications in family counselling
490. Currentlysection 19 of the Act requires family and child counsellors to makeon oath or affirmation of secrecy. The form of this oath oraffirmation is set out at regulation 58 of the Family LawRegulations 1984 . This section combines these existingprovisions to simplify the Act and, by moving the terms of the oathor affirmation into the primary legislation, emphasises theimportance of confidentiality.
491. Newsection 10D aims to clarify when communications made in familycounselling must or may be disclosed.
492. Recognising the importance of confidentiality to the success offamily counselling, subsection 10D(1) provides that a familycounsellor must not disclose a communication made in familycounselling unless the disclosure is required or authorised underthe section.
493. In orderto provide guidance to family counsellors the section delineatesthe circ*mstances in which disclosure is mandatory from thosecirc*mstances in which disclosure may occur, at the discretion ofthe family counsellor. The Government considers that it isonly appropriate to mandate disclosure of communications where thebody or individual to whom communications are to be disclosed isable to be prescribed in the legislation. As a result,disclosure of communications made in family counselling ismandatory where the family counsellor reasonably believes that thedisclosure is necessary for the purpose of complying with a law ofthe Commonwealth, a State or a Territory.
494. Thesituations in which a family counsellor may disclose acommunication made in family counselling are set out at subsection10D(4). These situations include the situation where thefamily counsellor reasonably believes that the disclosure isnecessary for the purpose of protecting a child from the risk ofphysical or psychological harm (paragraph 10D(4)(a)). As isthe case in relation to the concept of harm employed in section 68Fof the Act, the physical or psychological harm referred to hereencompasses sexual harm.
495. Subsection10D(3) enables a family counsellor to disclose a communication,with the consent of the party who made the disclosure, where thatperson is an adult, or, where the disclosure was made by a childwho is under 18, both parents must consent to the disclosure.If agreement cannot be reached the matter may be referred to thecourt for decision. This situation is similar to that whichoperates in relation to parentage testing, under section 69W of theAct.
496. Theability to disclose communications, with consent, will assist thepeople participating in family counselling in a number ofways. For example, if a person consents to the disclosure ofinformation when the family counsellor is making a referral toanother professional, this will ensure that clients will not needto relate the details of their circ*mstances each time they see adifferent professional.
497. Subsection10D(5) allows a family counsellor to make disclosures in order toprovide information for research relevant to families, as long asthe information provided does not constitute ‘personalinformation’ as defined in section 6 of the Privacy Act1988 . ‘Personal information’ is information or anopinion from which an individual’s identity is apparent, orcan reasonably be ascertained.
498. Subsection10D(6) clarifies that information that is inadmissible as evidencedue to the effect of section 10E, does not become admissible merelybecause a family counsellor is required or authorised to disclosethat information under subsections 10D(2) to (5). The Note tothis subsection clarifies that the counsellor’s evidence isinadmissible in court, even if subsection (2), (3), (4) or (5)allows the counsellor to disclose it in other circ*mstances.
499. Subsection10D(7) clarifies that information necessary for the provision of acertificate by a family counsellor under paragraph 16(2A)(a) of the Marriage Act 1961 is not prevented by this provision.
500. Section 16of the Marriage Act 1961 deals with the ability of judges toconsent to the marriage of a minor in circ*mstances where consenthas been refused by the minor’s parents. Paragraph16(2A)(a) provides that the judge must not consider theminor’s request for consent unless there is a signedcertificate from a family counsellor stating that the minor hasreceived counselling in relation to the proposed marriage.Subsection 10D(7) ensures that the family counsellor will not beconsidered to have breached confidentiality requirements if theyprovide such a certificate.
501. Subsection10D(8) clarifies that, in section 10D, communication includesadmission.
Section 10E Admissibility of communicationsin family counselling and in referrals from familycounselling
502. Currently,the admissibility into evidence of communications and admissionsmade in family and child counselling and family and childmediation, or in a professional consultation pursuant to a referralby a family and child counsellor or family and child mediator, isaddressed by section 19N of the Act.
503. Section10E largely recreates section 19N, to the extent that that sectionrelates to family counsellors. Subsection 10E(1) providesthat a communication made in family counselling is not admissiblein any court or proceedings, in any jurisdiction.
504. Subsection10E(1) also provides that a communication made when a professionalconsultation is being carried out on referral from a familycounsellor is also inadmissible in any court or proceedings, in anyjurisdiction. In order to ensure that professionals to whomfamily counsellors make referrals are aware of the inadmissiblestatus of communications made to them, subsection 10E(4) requiresthe family counsellor to inform them of this fact when making areferral.
505. As is thecase under current section 19N, an admission or disclosure thatindicates that a child under 18 has been abused or is at risk ofabuse may be admitted as evidence, unless there is sufficientevidence of the admission or disclosure available to the court fromother sources.
506. Subsection10E(3) clarifies that the information necessary for the provisionof a certificate by a family counsellor under paragraph 16(2A)(a)of the Marriage Act 1961 is not prevented by thisprovision.
507. Section 16of the Marriage Act 1961 deals with the ability of judges toconsent to the marriage of a minor in circ*mstances where consenthas been refused by the minor’s parents. Paragraph16(2A)(a) provides that the judge must not consider theminor’s request for consent unless there is a signedcertificate from a family counsellor stating that the minor hasreceived counselling in relation to the proposed marriage.Subsection 10D(7) ensures that the family counsellor will not beconsidered to have breached confidentiality requirements if theyprovide such a certificate.
Part II - Division 3 - FamilyDispute Resolution
Section 10F Definition of family disputeresolution
509. Currently,Part V of the Regulations provides that the family and childmediator’s role does not include the provision of advice (seeparagraph 63(1)(c)). As a result, dispute resolutionprocesses that include the provision of advice (such asconciliation) are currently regarded as a form of ‘family andchild counselling’. This is problematic, ascounselling and dispute resolution need to be clearly delineated inorder to allow the successful introduction of compulsory disputeresolution. The definitions of ‘familycounselling’ and ‘family dispute resolution’achieve a clear differentiation of the two processes.
510. Thedefinition of ‘family dispute resolution’ is based onNADRAC’s ‘Glossary of Terms’.
Section 10GDefinition of family dispute resolution practitioner
511. Section10G provides a definition of persons who may be regarded as familydispute resolution practitioners. The first instance iswhere a person is accredited as a family dispute resolutionpractitioner under the Accreditation Rules.
512. The FamilyCourt of Australia, the Federal Magistrates Court and the FamilyCourt of Western Australia will be able to authorise people to actas family dispute resolution practitioners, as will organisationsdesignated by the Attorney-General.
513. To ensurethat professionals who are currently delivering family and childcounselling and family and child mediation are able to continue tooffer these services Part 4 of Schedule 4 provides for transitionalarrangements
514. Undersubsection 10G(2) the Attorney-General is required to publish, atleast annually, a list of the organisations that he or she hasdesignated under paragraph 10G(1)(b). This provision ensuresthat the public is able to easily access this information, in theinterests of transparency.
515. Subsection10G(3) provides that an instrument made under this section is not alegislative instrument. A ‘legislativeinstrument’ is defined at section 5 of the LegislativeInstruments Act 2003 . In general terms, a legislativeinstrument is a written document that is of a legislative characterand that is made in the exercise of a power designated byParliament. Requirements relating to registering, tabling,scrutinising and sunsetting all Commonwealth legislativeinstruments are imposed under the Legislative InstrumentsAct. Subsection 10G(3) has been included to assist readers ofthe Act, so that they are aware that the requirements of imposed bythe Legislative Instruments Act do not apply to instruments madeunder this section.
Section 10H Confidentiality ofcommunications in family dispute resolution
516. Currentlyfamily and child mediators authorised by approved organisations orthe courts are required by section 19K of the Act to make on oathor affirmation of secrecy. The form of this oath oraffirmation is set out at regulation 66 of the Family LawRegulations 1984 . Other family and child mediators (thatis, those who are not authorised by an approved organisation orcourt but who meet the regulatory requirements for family and childmediators, referred to as ‘private mediators’) have aduty of confidentiality under regulation 67. This duty ofconfidentiality requires private mediators to adhere to the samerequirements as set down in the oath in regulation 66 of theRegulations. Section 10H combines these existing provisionsto simplify the Act and, by moving the terms of the oath oraffirmation into the primary legislation, emphasise the importanceof confidentiality. The section also aims to clarify whencommunications made in family dispute resolution must or may bedisclosed.
517. Recognising the importance of confidentiality to the success offamily dispute resolution, subsection 10H(1) provides that a familydispute resolution must not disclose a communication made in familydispute resolution unless the disclosure is required or authorisedunder this section.
518. In orderto provide guidance to family dispute resolution practitioners thissection delineates the circ*mstances in which disclosure ismandatory from those circ*mstances in which disclosure may occur,at the discretion of the family dispute resolutionpractitioner. The Government considers that it is onlyappropriate to mandate disclosure of communications where the bodyor individual to whom communications are to be disclosed is able tobe prescribed in the legislation. As a result, disclosure ofcommunications made in family dispute resolution is mandatory wherethe family dispute resolution practitioner reasonably believes thatthe disclosure is necessary for the purpose of complying with a lawof the Commonwealth, a State or a Territory.
519. Thesituations in which a family dispute resolution practitioner maydisclose a communication made in family dispute resolution are setout at subsection 10H(4). These situations include thesituation where the family dispute resolution practitionerreasonably believes that the disclosure is necessary for thepurpose of protecting a child from the risk of physical orpsychological harm (paragraph 10H(4)(a)). As is the case inrelation to the concept of harm employed in section 68F of the Act,the physical or psychological harm referred to here encompassessexual harm.
520. Subsection10H(3) enables a family dispute resolution practitioner todisclose a communication, with the consent of the party who madethe disclosure, where that person is an adult, or, where thedisclosure was made by a child who is under 18, both parents mustconsent to the disclosure. If agreement cannot be reached thematter may be referred to the court for decision. Thissituation is similar to that which operates in relation toparentage testing, under section 69W of the Act.
521. Theability to disclose communications, with consent, will assist thepeople participating in family dispute resolution in a number ofways. For example, if a person consents to the disclosure ofinformation when the family dispute resolution practitioner ismaking a referral to another professional, this will ensure thatclients will not need to relate the details of their story eachtime they see a different professional.
522. Subsection10H(5) allows a family dispute resolution practitioner tomake disclosures in order to provide information for researchrelevant to families, as long as the information provided does notconstitute ‘personal information’ as defined in section6 of the Privacy Act 1988 . ‘Personalinformation’ is information or an opinion from which anindividual’s identity is apparent, or can reasonably beascertained.
523. Subsection10H(6) clarifies that the provision of a certificate by a familydispute resolution practitioner under subsection 60I(8) is notprevented by the confidentiality requirement.
524. Subsection60I(8) (see Schedule 1) provides that a court must not hear anapplication for a parenting order unless (subject to someexceptions) the applicant files a certificate from a family disputeresolution practitioner that states either: that the applicant hasattended family dispute resolution and that all attendees made agenuine effort to resolve the dispute; that the applicant hasattended family dispute resolution but that one or more of theattendees did not make a genuine effort to resolve the dispute; orthat the applicant did not attend, but this failure was due to thefailure of the other party to attend.
525. Subsection10H(7) clarifies that information that is inadmissible as evidencedue to the effect of section 10J, does not become admissible merelybecause a family dispute resolution practitioner is requiredor authorised to disclose that information under subsections 10H(2)to (5).
526. Subsection10H(8) clarifies that, in section 10H, communication includesadmission.
Section 10J Admissibility of communicationsin family dispute resolution and in referrals from family disputeresolution
527. Currently,the admissibility into evidence of communications and admissionsmade in family and child counselling and family and childmediation, or in a professional consultation pursuant to a referralby a family and child counsellor or family and child mediator, isaddressed by section 19N of the Act.
528. Section10J largely recreates section 19N, to the extent that that sectionrelates to family dispute resolution practitioners.Subsection 10L(1) provides that a communication made in familydispute resolution is not admissible in any court or proceedings,in any jurisdiction.
529. Subsection10J(1) also provides that a communication made when a professionalconsultation is being carried out on referral from a family disputeresolution practitioner is also inadmissible in any court orproceedings, in any jurisdiction. In order to ensure thatprofessionals to whom family dispute resolution practitioners makereferrals are aware of the inadmissible status of communicationsmade to them, subsection 10J(4) requires the family disputeresolution practitioner to inform them of this fact when making areferral.
530. As is thecase under current section 19N, an admission or disclosure thatindicates that a child under 18 has been abused or is at risk ofabuse may be admitted as evidence, unless there is sufficientevidence of the admission or disclosure available to the court fromother sources.
531. Subsection10J(3) clarifies that the provision of a certificate by a familydispute resolution practitioner under subsection 60I(8) is notprevented by this provision.
532. Subsection60I(8) (see Schedule 1) provides that a court must not hear anapplication for a parenting order unless (subject to someexceptions) the applicant files a certificate from a family disputeresolution practitioner that states that the applicant has attendedfamily dispute resolution, or that the applicant did not attend,but this failure was due to the failure of the other party toattend.
10K Familydispute resolution practitioners must comply withregulations
533. As aresult of the restructuring of Parts II and III of the Act, section19P has been removed from the Act. The substance of section19P has been placed in new section 10K.
534. Section10K provides that the regulations may prescribe requirements to becomplied with by family dispute resolution practitioners inrelation to the family dispute resolution services that theyprovide. Currently the Regulations require family and childmediators to:
° have suitable qualifications, training and experience (regulation60)
° fulfil continuing training requirements (regulation 61)
° before providing mediation, conduct an assessment of the parties toa dispute to determine whether mediation is appropriate, and if themediator considers that mediation is inappropriate, must notprovide it (regulation 62)
° provide written information to the parties, at least one day priorto the mediation (regulation 63)
° ensure that the mediation process is suited to the needs of theparties (regulation64)
° not provide mediation in cases where the mediator has a conflict ofinterest (regulation 65), and
° not use any information acquired from a mediation for personal gain(regulation65).
535. During thetransition period the regulations made under this section imposingrequirements on family dispute resolution practitioners willcontinue to apply. These regulations will be amended shortlyto reflect the new terminology introduced by the Bill).
536. Ascurrently applies under section 19P of the Act, section 10Kprovides that the regulations may prescribe penalties not exceeding10 penalty units for offences against the regulations made underthis section. (The value of a ‘penalty unit’ isset out at section 4AA of the Crimes Act 1914 . It iscurrently $110. Thus the maximum penalty that could beprescribed in the regulations pursuant to this provision is a fineof $1,100).
Part II - Division 4 -Arbitration
Section 10L Definition ofarbitration
537. Currentlythe Act does not contain a definition of ‘arbitration’,which poses problems for users of the Act who are unfamiliar withthe term. The definition of arbitration inserted here istaken from NADRAC’s ‘Glossary of CommonTerms’.
538. At presentthe 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 hasno 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 ofissues that may be dealt with in arbitration.
539. In orderto simplify the Act, current Parts II and III of the Act aredeleted and replaced by a new structure that groups provisionsrelating to non-judicial interventions logically, by topic.This restructure of the Act involves the repeal, modification,relocation and/ or renumbering of current sections relating tocounselling, dispute resolution and arbitration. As a resultof this restructure section 19D has been removed from theAct. The substance of section 19D has been placed in newsection 13E. To reflect this change, what is currentlyreferred to as ‘section 19D arbitration’ is now termed‘section 13E arbitration’.
540. Nosubstantive changes have been made to the arbitration provisions ofthe Act.
Section 10M Definition ofarbitrator
541. Thedefinition of ‘arbitrator’ is unchanged from thecurrent definition at subsection 4(1) of the Act, except that itspecifically refers to the fact that the ‘prescribedrequirements’ for arbitrators will be set out in theRegulations, which should assist users of theAct.
542. Nosubstantive changes have been made to the arbitration provisions ofthe Act.
Section 10N Arbitrators may charge fees fortheir services
543. Thisprovision reproduces current section 19H of the Act. Section19H has been removed from the Act as a result of the restructurewhich deletes current Parts II and III of the Act are deleted andreplaces them with a new structure that groups provisions relatingto non-judicial interventions logically, by topic.
544. Thissection permits arbitrators to charge fees for their services andrequires them to provide written information to the parties aboutthose fees before the arbitration commences.
545. Nosubstantive changes have been made to the arbitration provisions ofthe Act.
Section 10PImmunity of arbitrators
546. Thisprovision reproduces current section 19M of the Act. Section19M has been removed from the Act as a result of the restructurewhich deletes current Parts II and III of the Act are deleted andreplaces them with a new structure that groups provisions relatingto non-judicial interventions logically, by topic.
547. Thissection provides that an arbitrator has, in performing his or herfunctions as an arbitrator, the same protection and immunity as aJudge of the Family Court has in performing the functions of aJudge.
548. Anarbitrator makes a determination (referred to as an‘award’) on a dispute, based on the arguments andevidence put to him or her. The arbitrator’s award maybe registered in a court (pursuant to section 13H). If anaward is registered in this way, it has effect as if it were adecree made by the court in which it is registered. Asa result, an arbitrator requires immunity both to preserve theintegrity of his or her determination and to ensure thatarbitrators are able to make determinations independently and on the basis of their unbiased opinion,without apprehension of personal consequences .
549. Nosubstantive changes have been made to the arbitration provisions ofthe Act.
Part III - Family consultants
Division 1 - About familyconsultants
Section 11A Functions of familyconsultants
550. The roleof the courts with jurisdiction under the Act in deliveringcounselling and dispute resolution services is likely tochange. The court’s delivery of these services isexpected to decrease in parallel with the increasing provision ofthese services by the community sector.
551. The courtsare moving to a process in which a ‘family consultant’will be assigned to each case in the court involving children, andwill manage the case, providing a continuing service, as it movesthrough the court process. Part III of the Bill deals withthe functions of ‘family consultant’, who will beappointed by the Family Court of Australia, the Family Court ofWestern Australia or the Federal Magistrates Court.
552. Theprimary distinction between ‘family counsellors’ and‘family dispute resolution practitioners’ (who mainlyprovide services in the community) on the one hand, and court-based‘family consultants’ on the other, is that the formerwill provide confidential services. Therefore evidence ofanything said or any admissions made during those processes will beinadmissible. The services provided by ‘familyconsultants’ will not be protected by confidentiality andevidence of things that are said to a family consultant will beadmissible in court provided the person concerned has been informedthat disclosures made to family consultants are admissible.Even if a person has not been informed that their statements ordisclosures will be admissible, special considerations will applyin cases that involve child abuse.
553. Thisapproach will help to make it clearer when court staff or personsengaged by the court are providing confidential/inadmissibleservices and when they are not. Under the Act in its presentform court staff or persons engaged by a court may provideconfidential or non-confidential services but do so under the titlemediators, counsellors or welfare officers. Under the Billthe title of the person who provides court services will differdepending upon whether the process is confidential or not andpeople will need to be informed when statements made in a processwill be admissible in court. This willassist inaddressing the confusion that exists among the public as to theroles performed by the two sectors and the appropriate place toseek different forms of assistance.
554. Section11A specifies a number of the functions to be performed by familyconsultants, which include:
o assistingand advising people involved in the proceedings (eg. grandparents)by, for example, providing expert advice on the effect on childrenof different ages of separation from a grandparent who has been amajor caregiver to the child.
° assisting and advising courts, and giving evidence in relation tothe proceedings. For example, a family consultant may assistthe court by providing expert evidence on an issue raised in thecase, such as how a child’s age may affect his or herperception of a parental separation.
° helping people involved in the proceedings (eg. grandparents) toresolve disputes that are the subject of the proceedings by, forexample, suggesting possible solutions that take into account thepositions of both parties, or providing examples of how otherpeople have dealt with similarproblems.
° reporting to the court in certain circ*mstances including where, indivorce proceedings the court doubts whether the arrangements madefor welfare and development of the children of the marriage areproper in all the circ*mstances, the court may adjourn theproceedings in order to obtain a report from a familyconsultant.
° advising the court about appropriate family counsellors, familydispute resolution practitioners and courses, programs and servicesto which the court can refer the parties to proceedings. Thecourt may seek this advice from a family consultant (in the case ofthe Family Court of Australia, the Federal Magistrates Court or theFamily Court of Western Australia) or an appropriately qualifiedprofessional, either within the court or outside it (such as aprofessional employed by a Family Relationship Centre).
Section 11BDefinition of family consultant
555. Section11B explains that a ‘family consultant’ is a person whois appointed:
° as an officer of the Family Court of Australia under paragraph38N(1)(d) of the Act (paragraph 11B(a))
° in relation to the Federal Magistrates Court under paragraph99(1)(f) of the Federal Magistrates Act 1999 (paragraph11B(b))
° appointed as a family consultant in relation to the Family Court ofAustralia under the Regulations (paragraph 11B(c)), or
° in relation to the Family Court of Western Australia (paragraph11B(d)).
556. Section38BA, at item 32 of this Schedule, provides that the ChiefExecutive Officer of the Family Court of Australia has all thefunctions conferred on family consultants by section 11A, and anyassociated powers and duties. Section 38BC allows the ChiefExecutive Officer of the Family Court of Australia to givedirections to an officer of that court that relate to theofficer’s functions as a family consultant. The Note tosection 11B draws attention to these provisions.
557. Similarly,section 93A of the Federal Magistrates Act 1999 , at item 106of this Schedule, provides that the Chief Executive Officer of theFederal Magistrates Court has all the functions conferred on familyconsultants by section 11A of the Act, and any associated powersand duties. Section 93C allows the Chief Executive Officer of theFederal Magistrates Court to give directions to an officer of thatcourt that relate to the officer’s functions as a familyconsultant. The Note to section 11B draws attention to theseprovisions.
Section 11C Admissibility of communicationswith family consultants and referrals from familyconsultants
558. Theprimary distinction between ‘family counsellors’ and‘family dispute resolution practitioners’(who mainlyprovide services in the community) on the one hand, and court-based‘family consultants’ on the other, is that the formerwill provide confidential services and evidence of anything said orany admissions made during those processes will beinadmissible.
559. Theservices provided by ‘family consultants’ will not beprotected by confidentiality and evidence of things that are saidto a family consultant will be admissible in proceedings under theAct, provided the person concerned has been informed thatdisclosures made to family consultants are admissible.
560. Acommunication made when a professional consultation is beingcarried out on referral from a family consultant is also admissiblein proceedings under the Act, provided that the person concernedhas been informed that such disclosures are admissible.
561. Note 2clarifies that the fact that subsection 11C(1) provides thatcommunications with a family consultant or with a professional towhom a person has been referred by a family consultant areadmissible in proceedings under this Act should not be interpretedas implying that such communications are inadmissible in otherproceedings (such as, for example, criminal proceedings).
562. Subsection11C(3) provides that even in cases where a person has not beeninformed that communications with a family consultant or with aprofessional to whom a person has been referred by a familyconsultant are admissible, communications that indicate that achild under 18 has been abused or is at risk of abuse may beadmitted as evidence, unless there is sufficient evidence of theadmission or disclosure available to the court from othersources. This reflects current section 19N of the Act, andsections 10E and 10J of this Schedule, which relate to theadmissibility of communications in family counselling and familydispute resolution,respectively.
Section 11D Immunity of familyconsultants
563. Thissection provides that a family consultant has, in performing his orher functions as a family consultant, the same protection andimmunity as a Judge of the Family Court has in performing thefunctions of a Judge.
564. Familyconsultants require immunity as their work, as set out at 11A, willdirectly feed into the court’s decision-making process.If the family consultants did not have immunity, people who wereunhappy with the court’s decision could endeavour to attackthe foundations of that decision by challenging the familyconsultants. Any problems with the court’s decisionsshould be dealt with directly through the appealsprocess.
Division 2 - Courts’ use offamily consultants
Section 11E Courts to consider seekingadvice from family consultants
565. Part IIIBof the Act, inserted by this Schedule, sets out the power of courtsexercising jurisdiction under the Act to order, or advise, peopleto attend family services, either court-based or non-court,that areappropriate to their needs.
566. Section11E aims to ensure that the court makes orders that are appropriateto the circ*mstances and needs of the parties, and which take intoaccount the family services available in different areas. Thesection provides that where a court has the power to order a personto attend family counselling, family dispute resolution, a course,program or service, or an appointment with a family consultant, itmay seek the advice of either a family consultant (if it is a Courtthat has family consultants - that is, the Family Court ofAustralia, the Federal Magistrates Court or the Family Court ofWestern Australia) or an appropriately qualified professional,either within the court or outside it (such as a person employed bya Family Relationship Centre). The section aims to ensurethat the court makes orders that are appropriate to thecirc*mstances and needs of the parties, and which take into accountthe family services available in different areas.
568. In orderto ensure the transparency of court processes, subsection 11E(2)provides that if, when making a referral, the court seeks theadvice of a family consultant or other professional, the person orpeople being referred must be informed of the person from whom thecourt is seeking advice and the nature of the advice beingsought.
Section 11F Court may order parties toattend appointments with a family consultant
569. Section11F allows a court exercising jurisdiction in proceedings under theAct to order one or more of the parties to the proceedings toattend one or appointments with a family consultant. Thecourt would make such an order where it considers that one or moreof the parties would benefit from the services that a familyconsultant is able to provide. The functions performed by family consultants are setout at section 11A and include assisting and advising peopleinvolved in the proceedings (paragraph 11A(a)) and helping peopleinvolved in proceedings to resolve disputes (paragraph11A(c)).
570. TheNote following subsection 11F(1) reminds the court that, beforeordering one or more of the parties to attend appointments with afamily consultant, it is required, under section 11E, to considerseeking the advice of a family consultant or other appropriatelyqualified professional as to the services appropriate to the needsof the person and being referred and the most appropriate providerof those services.
571. Subsection11F(2) provides that when ordering parties to attend an appointmentwith a family consultant, the court must inform the parties of theeffect of section 11G. Subsection 11G(1) provides that if aperson has been ordered, by the court, to attend an appointmentwith a family consultant and either does not attend theappointment, or does not comply with an instruction that the familyconsultant gives to him or her, the family consultant must reportthis to the court. If such a report is made to the court,subsection 11G(2) allows the court to make any further orders thatit considers appropriate.
572. Subsection11F(3) provides that the court may make an order directing partiesto attend an appointment with a family consultant on its owninitiative, or when an application is made by one of the parties tothe proceeding, or by a lawyer who is independently representingthe interests of a child involved in the case, undersection68L. (Section 68L provides that in proceedingsunder the Act in which a child’s best interests or welfare isthe paramount, or a relevant, consideration, a court may order thatthe child’s interests are to be independently represented bya lawyer).
Section 11G Consequences of failure tocomply with order under section 11F
573. Section11F allows a court exercising jurisdiction in proceedings under theAct to order one or more of the parties to the proceedings toattend one or appointments with a family consultant.
574. If acourt, under section 11F, orders a person to attend an appointmentwith a family consultant and that person fails to comply with thatorder, or attends the appointment as ordered but does not complywith an instruction that the family consultant gives to the person(for example, if the family consultant instructed the person toseek counselling for drug or alcohol related problems), the familyconsultant must, under subsection 11G(1), report that failure tothe court.
575. Subsection11G(2) provides that when a court receives such a report it maymake any further orders that it considers appropriate. Forexample if the person has refused to comply with a familyconsultant’s instructions to treat the other party in a civilmanner when discussions are taking place involving the familyconsultant, the court might consider it appropriate to order theperson to attend a course or program that informs participants ofthe effects that high levels of parental conflict have onchildren.
576. Subsection11G(3) provides that the court may make an order under subsection11G(2) on its own initiative, or when an application is made by oneof the parties to the proceeding, or by a lawyer who isindependently representing the interests of a child involved in thecase, under section68L. (Section 68L provides that inproceedings under the Act in which a child’s best interestsor welfare is the paramount, or a relevant, consideration, a courtmay order that the child’s interests are to be independentlyrepresented by a lawyer).
Part IIIA - Obligations to informpeople about non-court based family services and aboutcourt’s processes and services
Division 1- Introduction
Section 12A Objects of thisPart
577. Toimplement the Government's policy of encouraging peopleconsidering, or affected by separation or divorce to utilisenon-court counselling and dispute resolution services,PartIIIA of the Act ensures people receiveuseful information onthese services, as well as information about the court’sprocesses and services,early in the process of separation ordivorce. The provision of such information at an early stagemay assist the people involved to addressissues before theybecome entrenched, which should improve the possibility of theparties resolving the dispute without courtintervention.
578. Section12A set out the objects of new Part IIIA of the Act. Theseobjects centre around ensuring that people who are consideringseparation or divorce, or who are affected, or are likely to beaffected by separation and divorce are made aware of the servicesavailable to assist them, the options available to them (forexample, reaching agreement on matters in dispute with theassistance of a family dispute resolution practitioner, or applyingto the court to make an order), and the consequences attendant onthese options.
Division 2 - Kind of information tobe provided
Section 12BPrescribed information about non-court based family services andcourt’s processes and services
579. Subsection12B(1) provides that the Regulations may prescribe informationrelating to non-court based family services and the court’sprocesses and services, which is to be included in the documentsprovided under this Part. These documents are required to beprovided, in appropriate cases, by legal practitioners (undersubsections 12E(1) and 12E(3)) and the principle executive officerof a court with jurisdiction under the Act (under subsection12F(1)).
Section 12C Prescribed information aboutreconciliation
Section 12D Prescribed information aboutPart VII proceedings
582. Subsection12D(1) provides that the Regulations may prescribe information thatis to be included in documents provided under this Part to peopleinvolved in child-related proceedings (that is, proceedings underPart VII of the Act). These documents are required to be provided,in appropriate cases, by legal practitioners (under subsection12E(3)) and the principle executive officer of a court withjurisdiction under the Act (under subsection 12F(1) - not inas yet - see Bill).
583. Subsection12D(2) provides that any information to be provided to peopleinvolved in child-related proceedings that is prescribed in theRegulations pursuant to subsection 12D(1) must include informationabout the family counselling services available to assist theparties, and the child or children concerned, to adjust to ordersmade under Part VII (for example, parenting orders). Thisdoes not prevent other issues being addressed in the prescribedinformation.
Division 3 - Who must provideinformation, and when
Section 12E Obligations on legalpractitioners
584. Section12E places obligations on legal practitioners to provideinformation to people by whom they are consulted, or who they arerepresenting in proceedings. This information is to beprovided in the form of documents, which should ensure that thetask of providing information is not onerous. The obligationsimposed under this section build on requirements that currentlyexist in the Act.
585. Subsection12E(1) requires a legal practitioner who is consulted by a personwho is considering instituting proceedings under the Act to givethat person documents containing the information prescribed in theRegulations pursuant to section 12B.
586. Subsection12E(2) requires a legal practitioner who is consulted by, or who isrepresenting, a married person who is a party to proceedings for adivorce order, or financial or Part VII proceedings (i.e.proceedings about children), to give that person documentscontaining the information prescribed in the Regulations pursuantto section12C.
587. A legalpractitioner does not have to provide these documents if he or shehas reasonable grounds to believe that the person has already beengiven these documents (subsection 12E(4)), or if he or sheconsiders that there is no reasonable possibility of areconciliation between the parties to the marriage (subsection12E(5)).
588. Subsection12E(3) requires a legal practitioner who is representing a party inproceedings under Part VII (i.e. proceedings about children), togive that person documents containing the information prescribed inthe Regulations pursuant to section12D.
589. A legalpractitioner does not have to provide these documents if he or shehas reasonable grounds to believe that the person has already beengiven these documents (subsection 12E(4)).
590. Section63DA of the Act (at item 18 of Schedule 1 of the Bill) also imposesinformation provision obligations on legal practitioners who aredealing with people involved in proceedings under Part VII of theAct (i.e. proceedings concerning children).
Section 12FObligations on principal executive officers of courts
591. Section12F places information provision obligations on the principalexecutive officer of a court with jurisdiction under the Act.The relevant information is to be provided in the form ofdocuments, and must be provided on the first occasion that theperson deals with the registry of the court. The principalexecutive officer of a relevant court may delegate the actualprovision of documents to staff as accords with the administrativearrangements operating in the different courts. Theinformation relates to non-court based services andresconciliation.
592. Subsection12F(2) requires the principal executive officer of a court withjurisdiction under the Act to ensure that, if a person involved inproceedings under the Act asks for information about familycounselling services or family dispute resolution services from anofficer or staff member of the court, the person is given documentscontaining information about those services. ‘People involvedin proceedings’ is defined at subsection 4(1AA) at item 35 ofthis Schedule. No obligations are imposed on ‘peopleinvolved in proceedings’. Instead, the use of the termallows assistance to be given to people, including children, whomay be affected by the proceedings, but are not actually parties tothe proceedings.
593. Theobligations imposed under section 12F build on the obligationscurrently imposed on court staff under sections 17, 19J and 62H andsubsection 62B(2).
Section 12G Obligations on familycounsellors, family dispute resolution practitioners andarbitrators
594. Section12G obliges family counsellors, family dispute resolutionpractitioners and arbitrators who deal with a married person who isconsidering instituting proceedings for a divorce order, orfinancial or Part VII proceedings (i.e. proceedings aboutchildren), to give that person (and, in appropriate cases, thatperson’s spouse) documents containing the informationprescribed in the Regulations pursuant to section12C.Section 12C provides that the Regulations may prescribe informationrelating to services available to help with a reconciliationbetween the parties to a marriage, which is to be included in thedocuments provided under this Part.
595. Thisbuilds on the current provisions in the Act that only requirejudges and legal practitioners to consider the possibility of areconciliation of the parties.
596. A familycounsellor, family dispute resolution practitioner or arbitratordoes not have to provide this document if he or she has reasonablegrounds to believe that the person has already been given thesedocuments (paragraph 12G(2)(a)), or if he or she considers thatthere is no reasonable possibility of a reconciliation between theparties to the marriage (paragraph 12G(2)(b)).
597. A Note isprovided in the section to reflect that before advising theparties, the court must consider seeking the advice of a familyconsultant about the services appropriate to the parties’needs.
598. Section63DA of the Act (at item 18 of Schedule 1 of the Bill) also imposesinformation provision obligations on family counsellors and familydispute resolution practitioners who are dealing with peopleinvolved in proceedings under Part VII of the Act (i.e. proceedingsconcerning children).
Part IIIB - Court’s powers inrelation to court and non-court based family services
Division 1- Introduction
Section 13AObjects of this Part
599. Toimplement the Government's policy of encouraging peopleconsidering, or affected by separation or divorce to utilisecounselling, dispute resolution, arbitration and otherservices,Part IIIB of Schedule 4 facilitates, and encourages,access to these services and gives courts with jurisdiction underthe Act power to require parties to proceedings to attendappropriate services. This section sets out the objects ofPart IIIB.
Division 2 - Help withreconciliation
Section 13B Court to accommodate possiblereconciliations
600. Subsection13B(1) provides that a court exercising jurisdiction in proceedingsfor 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 areconciliation between the parties to the marriage. Thissubsection reproduces current subsection 14C(1) of the Act.
601. Subsection13B(2) provides that if the court considers, from the evidence inthe proceedings or the attitude of the parties to the marriage,that there is a reasonable possibility of a reconciliation betweenthe parties, the court may adjourn the proceedings to give theparties the opportunity to consider a reconciliation. Thissubsection reproduces current subsection 14C(2) of the Act, exceptto the extent that that subsection allows a judge, if he or sheconsiders that there is a reasonable possibility of areconciliation of the parties, to interview the parties in chambersto assist in that reconciliation. Following consultation withthe courts this ability has been removed, as it is felt that thisrole is better performed by a person specifically trained as acounsellor.
602. Subsection13B(3) provides that if proceedings are adjourned to give theparties an opportunity to consider a reconciliation, the court mustadvise the parties to attend a family counselling organisation, orother appropriate person or organisation. This subsectionreflects the Government’s belief that reconciliation ofparties to a marriage should be encouraged wherever appropriate andthat it is important that people considering a reconciliation aregiven the most appropriate expert assistance. The parties are notobliged to act on the court’s recommendation under thissubsection, but it is appropriate that they are made aware of, andadvised to use, relevant available services.
603. The Notefollowing subsection 13B(3) reminds the court that, before advisingthe parties to attend family counselling or another appropriateperson or organisation under subsection 13B(2), it is required,under section 11E, to consider seeking the advice of a familyconsultant or other appropriately qualified professional as to theservices appropriate to the needs of the parties and the mostappropriate provider of those services.
604. Subsection13B(4) applies in circ*mstances where a court has adjourned theproceedings under subsection 13B(2) in order to give the partiesthe opportunity to consider reconciliation. This subsectionprovides that the court must resume the proceedings as soon aspracticable if, after the adjournment, one of the parties requeststhis. This recognises that although, in appropriatecirc*mstances, parties to a marriage should be given encouragementand assistance to reconcile, if either or both of those partiesdoes not wish to pursue a reconciliation, they should be able toresume a court proceeding without undue delay.
Division 3 - Referrals to familycounselling, family dispute resolution and other familyservices
Section 13C Courtmay refer parties to family counselling, family dispute resolutionand other family services
605. Section13C allows a court exercising jurisdiction in proceedings under theAct to order one or more of the parties to the proceedings toattend family counselling, family dispute resolution, or anotherappropriate course, program or service. The court would make suchan order where it is felt that one or more of the parties wouldbenefit from these services.
606. Currently,courts exercising jurisdiction under the Act can order people toattend, or refer them to, counselling, mediation or apost-separation parenting program under sections 16A, 16B, 19B,19BAA, 19BA, 62F, 65F, 65LA and 70NG.
607. Section13C consolidates and strengthens the power of the court under thosesections in order to make the Act simpler to access andunderstand. Empowering the court to order people to attendrelevant services at any time in any proceedings under the Actmaximises the opportunities for people to address issues andresolve disputes outside the court. The attitudes of partiesmay change throughout proceedings and proposed section 13C willallow the court to direct people to appropriate services at theappropriate time.
608. To ensurethat the court makes orders that are suitable to the circ*mstancesand needs of the parties, and which take into account the familyservices available in different areas, the court is required toconsider seeking advice from a family consultant (if it is a courtthat has family consultants) or an appropriately qualifiedprofessional, either within the court or outside it (such as aprofessional employed by a Family Relationship Centre) when makingan order under this section. This recognises that judges maynot be aware of all the relevant services operating in an area, ortheir areas of expertise, and therefore may benefit from seekingspecialist advice.
609. Subsection13C(2) allows the court to suggest a particular purpose for theattendance or participation of the party or parties. Forexample, a court might suggest, when ordering a party to attend afamily counsellor, that the counsellor could explore ways to assistthe party to cope with grief arising from separation ordivorce.
610. Subsection13C(3) provides that an order made under subsection 13C(1) mayrequire the party or parties to encourage the participation ofspecified other persons who are likely to be affected byproceedings. For example, it may be appropriate to involvechildren, grandparents or other relatives in family counselling orfamily dispute resolution.
611. Subsection13C(4) enables the court to make any other orders, additional to anorder under subsection 13C(1) that it considers reasonablynecessary or appropriate in relation to the order. Forexample, it may be appropriate to adjourn the proceedings until theparty or parties has attended the service as ordered undersubsection 13C(1).
612. Subsection13C(5) provides that the court may make orders under this sectionon its own initiative, or when an application is made by one of theparties to the proceeding, or by a lawyer who is independentlyrepresenting the interests of a child involved in the case, undersection68L. (Section 68L provides that in proceedingsunder the Act in which a child’s best interests or welfare isthe paramount, or a relevant, consideration, a court may order thatthe child’s interests are to be independently represented bya lawyer).
Section 13D Consequences of failure tocomply with order under section 13C
613. Subsection13D(1) provides that if a court makes an order under section 13Cand 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 thecourt.
614. Subsection13D(2) provides that when a court receives such a report it maymake any further orders that it considers appropriate.
615. Subsection13D(3) provides that the court may make an order under subsection13D(2) on its own initiative, or when an application is made by oneof the parties to the proceeding, or by a lawyer who isindependently representing the interests of a child involved in thecase, under section68L. (Section 68L provides that inproceedings under the Act in which a child’s best interestsor welfare is the paramount, or a relevant, consideration, a courtmay order that the child’s interests are to be independentlyrepresented by a lawyer).
616. Section13D 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 Courtmay refer Part VIII proceedings to arbitration
617. Section13E provides that a court exercising jurisdiction under Part VIIIproceedings may, with the consent of all the parties to theproceedings, make an order referring the proceedings, or part ofthe proceedings, or any matter arising in the proceedings, to anarbitrator for arbitration. Part VIII proceedings areproceedings that relate to property, spousal maintenance ormaintenance agreements. These are referred to a‘financial proceedings’.
618. Subsection13E(2) provides that if a court makes such an order, it may, ifnecessary adjourn the proceedings and make any additional ordersappropriate to facilitate the effective conduct of thearbitration.
619. Section13E reproduces current section 19D of the Act. No substantivechanges have been made to the arbitration provisions.
Section 13F Court may make orders tofacilitate arbitration of certain disputes
620. Section13F provides that a court having jurisdiction under the Act may, onapplication by a party to a relevant property or financial privatearbitration, make orders appropriate to facilitate the effectiveconduct of the arbitration. ‘Relevant property orfinancial arbitration’ is defined at paragraph 10L(2)(b) ofthe Bill.
621. Section13F reproduces existing subsection 19E(1), except to the extentthat the term ‘private arbitration’ has been replacedby ‘relevant property or financial arbitration’.
622. Nosubstantive changes have been made to the arbitrationprovisions.
Section 13GFamily Court and Federal Magistrates Court may determine questionof law referred by arbitrator
623. Section13G provides that an arbitrator may, at any time before making anaward in the arbitration, refer a question of law arising inrelation to the arbitration for determination by a judge of theFamily Court or the Family Court of Western Australia, or by theFederal Magistrates Court.
624. Undersubsection 13G(2), an arbitrator may make such a referral on his orher own initiative or at the request of one or more of the partiesto the arbitration (if the arbitrator considers it appropriate todo so).
625. Anarbitrator must not make an award in the arbitration until thequestion of law has been determined, or the judge or the FederalMagistrates Court has remitted the question to the arbitrator,having found that no question of law arises (subsection13G(3)).
626. Section13G consolidates current sections 19EA and 19EB of the Act (withrelevant changes to terminology).
627. Nosubstantive changes have been made to the arbitrationprovisions.
Section 13H Awards made in arbitration maybe registered in court
628. Section13H provides that a party to an award made in arbitration mayregister the award in either the court that ordered the arbitrationunder section 13E, or if the
arbitration was not ordered under that section, in any court withjurisdiction under the Act.
629. An awardthat is registered with a court subsection 13H(1) has the sameeffect as a decree made by the court in which it is registered.
630. Section13H reproduces current subsections 19D(5) and 19E(2) of the Act(with relevant changes to terminology).
631. Nosubstantive changes have been made to the arbitrationprovisions.
Section 13J Family Court or FederalMagistrates Court can review registered awards
632. Section13J provides that a party to an award that has been registered in acourt under section 13H may apply for a review of the award, onquestions of law, by a judge of the Family Court or the FamilyCourt of Western Australia, or by the Federal MagistratesCourt.
633. Onconducting such a review, the judge or the Federal MagistratesCourt may determine all questions of law arising in relation to thearbitration and make any decrees that are consideredappropriate.
634. Section13J consolidates current sections 19F and 19FA of the Act (withrelevant changes to terminology).
635. Nosubstantive changes have been made to the arbitrationprovisions.
Section 13K Family Court and FederalMagistrates Court may set aside registered awards
636. Section13K provides that if an award made in arbitration, or an agreementmade as a result of arbitration, is registered in the Family Court,the Family Court of Western Australia or the Federal MagistratesCourt, the court in which it is registered may make a decreeaffirming, reversing or varying the award or agreement.
637. However,the court may only make such a decree if it is satisfied that:
4. the award or agreement was obtained by fraud (paragraph13K(2)(a))
5. the award or agreement is void, voidable or unenforceable(paragraph 13K(2)(b))
6. it is impracticable for some of the award or agreement to becarried out (paragraph 13K(2)(c)), or
7. the arbitration was biased or there was a lack of proceduralfairness in how the arbitration was conducted (paragraph13K(2)(d)).
638. Section13K consolidates current sections 19G and 19GA of the Act (withrelevant changes to terminology).
639. Nosubstantive changes have been made to the arbitrationprovisions.
Item 37: Subsection 26B(1)
640. This itemamends subsection 26B(1) of the Act to replace a reference tosection 19G with a reference to section 13K. This amendmentis consequential to the amendments to the structure of, and theterminology employed in, the Act.
Item 38: Subsection 37(2)
641. This itemamends subsection 37(2) of the Act to omit a reference to courtcounsellors, as a consequence of the amendments to the terminologyemployed in the Act.
Item 39: At the end of section 37
642. Undersection 38BC, the Chief Executive Officer of the Family Court hasthe power to give directions that relate to the functions of familyconsultants in the Court, and the functions of court officers orstaff members acting as family counsellors or family disputeresolution practitioners.
643. This itemprovides that the Principal Registrar must not give directions thatrelate to the functions of these people. This clarifies thatthe responsibility for family consultants, family counsellors andfamily dispute resolution practitioners in the Family Court restswith the Chief Executive Officer of that Court, rather than withits Principal Registrar.
Item 40: Paragraph 37A(1)(e)
644. This itemamends paragraph 37A(1)(e) of the Act to refer to the new sectionsinserted by the Bill. This amendment is consequential to theamendments to the structure of the Act.
Item 41: Paragraph 37A(2)(e)
645. This itemamends paragraph 37A(2)(e) of the Act to replace a reference tosection 19G with a reference to section 13K. This amendmentis consequential to the amendments to the structure of, and theterminology employed in, the Act.
Item 42: After Division 1 of PartIVA
Division 1A- Administration of Court’s family services
646. This iteminserts a new Division into the Act, to deal with administration ofthe Family Court’s family services.
Section 38BA Chief Executive Officer hasfunctions of family consultants
647. Section38BA confers the functions to be performed by family consultantsunder section 11A on the Chief Executive Officer of the FamilyCourt. These functions can be delegated (see section 38BBbelow). As the Chief Executive Officer can only delegatefunctions that he or she possesses the functions to be performed byfamily consultants under proposed section 11A must be conferred onthe Chief Executive Officer.
Section 38BBChief Executive Officer may delegate powers and functions thatrelate to family consultants
648. Section38BA permits the Chief Executive Officer to delegate the functionsconferred upon him or her under section 38BA. This allows theChief Executive Officer to control the work flow to individualfamily consultants, to ensure that they are able to provideservices to the court and people involved in proceedings in themost efficient and effective way.
649. The mannerin which the Chief Executive Officer chooses to delegate suchfunctions will be a decision for him or her. For example, theChief Executive Officer may choose to delegate the functions offamily consultants to a ‘Principal familyconsultant’. The Bill has been designed to allowmaximum flexibility for the CEO in thisregard.
Section 38BC Chief Executive Officer maygive directions that relate to family services functions
650. The ChiefExecutive Officer of the Family Court has power, undersubsection38D(1), to do all things necessary or convenient tobe done for the purpose of assisting the Chief Judge to manage theadministrative affairs of the Family Court. This situationwill not be changed by the proposed amendments.
651. To put thematter beyond doubt, section 38BC clarifies that the ChiefExecutive Officer may give directions to family consultants, andcourt officers or staff members performing the functions of afamily counsellor or family dispute resolutionpractitioner.
Section 38BD Chief Executive Officer mayauthorise officer or staff member to act as family counsellor orfamily dispute resolution practitioner
652. Sections10C and 10G explain who is a ‘family counsellor’ or a‘family dispute resolution practitioner’.One category of family counsellor and family dispute resolutionpractitioner is a person who is authorised by the Chief ExecutiveOfficer of the Family Court, to act as a family counsellor underthis section (as per paragraphs 10C(1)(c) and 10G(c)).
653. Subsection38BD(3) ensures that family consultants who are authorised by theChief Executive Officer, under this section, to provide familycounselling or family dispute resolution for the Family Courtdo not combine the two roles, by, for example, attempting toprovide services as both a family consultant and a family disputeresolution practitioner in the one case. It is imperativethat the work of family consultants is kept separate from the workof family counsellors and family dispute resolution practitionersas the confidentiality and admissibility applying to the processesare completely different and it would be impossible for apractitioner to offer both types of services without compromisingeachone.
Item 43:Paragraphs 38N(1)(d), (da), (daa) and (db)
654. Section38N of the Act sets out the categories of officers of the FamilyCourt, other than the Chief Executive. This item removes thefollowing references to positions that have been changed due tochanges in terminology and adds a new reference to ‘familyconsultants’:
o Paragraph38N(1)(d) - court counsellors. This term is removed bythe Bill. See item 17 of this Schedule.
o Paragraph38N(1)(da) - a Principal Mediator. The term‘mediator’ is not used in the Bill. In order togive the Family Court maximum flexibility to organise itsadministrative arrangements (especially in view of the creation ofa combined registry for the Family Court and the FederalMagistrates Court), the Bill does not refer to any hierarchy offamily consultants - this will be a matter for the courts todetermine.
o Paragraph38N(1)(daa) - Managers Mediation. The terms‘mediator’ and ‘mediation’ are not used inthe Bill. As above, the Bill does not impose any hierarchy onfamily consultants - this is a matter for the courts todetermine.
o Paragraph38N(1)(db)- mediators. The term ‘mediator’ is not usedin the Bill.
Item 44: Aftersubsection 38R(1)
655. Section38R of the Act allows the Chief Executive Officer of the FamilyCourt to engage consultants. This item explicitly providesthat the Chief Executive Officer may engage people to performfamily counselling and family dispute resolution.
Item 45: Subsection 38R(2)
656. Thisamendment is consequential to Item 44.
Item 46: Paragraph 41(4)(c)
657. Section 41of the Act sets out the requirements for the establishment of StateFamily Courts. This item amends paragraph 41(4)(c), toprovide that the Governor-General will not proclaim a court to be aState Family Court unless, amongst other things, theGovernor-General is satisfied that appropriate family counselling,family dispute resolution services and family consultants will beavailable to that court. Currently paragraph 41(4)(c) onlyrefers to ‘counselling facilities’ beingavailable.
Item 47: Paragraph 44(1B)(a)
658. Subsection44(1B) provides that an application for divorce shall not beheard (without the leave of the court) unless acertificate is filed stating that the parties have consideredreconciliation with the assistance of a family and child counselloror other suitable person. This item updates the titles of theprofessionals from whom a certificate may be obtained in line withthe changes to terminology employed in theAct.
Item 48: Subsection 55A(2)
659. This itemchanges the reference in subsection 55A(2) to ‘a family andchild counsellor or welfare officer’ to ‘a familyconsultant’, in line with the amendments to the terminologyemployed in the Act.
Item 49: Section 60C (table item 3)
660. Thisamendment is consequential to the amendments to the structure of,and the terminology employed in, the Act.
Item 50: Division 3 of Part VII(heading)
661. As aresult of amendments to the structure of, and the terminologyemployed in, the Act, Division 3 of Part VII now deals only withreports relating to children under 18. This Item amendsthe heading to Division 3 accordingly.
Item 51: Section 62A
662. This itemrepeals section 62A, which sets out what Division 3 of Part VIIdoes, to reflect its new, more limited focus (preparation ofreports for use in proceedings relating to children who are under18), which is a result of the restructure of theAct.
Item 52: Sections 62B, 62C, 62CA, 62D, 62Eand 62F
663. This itemrepeals current sections 62B, 62C, 62CA, 62D, 62E and 62F of theAct and inserts a new section 62B.
664. Therequirements of current subsection 62B have been strengthened andincorporated into sections 12D, 12E and 12F.
665. Currentsections 62C, 62CA, 62D and 62E relate to provision of family andchild counselling by courts exercising jurisdiction under theAct. As the majority of family counselling and family disputeresolution will be provided through the community, rather than thecourt, these provisions have been removed. As set out inrelation to sections 10C and 10G, the Family Court, the FamilyCourt of Western Australia and the Federal Magistrates Court willstill be able to provide these services where necessary, but it isintended that most counselling and dispute resolution services willbe provided outside the court.
666. Currentsection 62F allows the court to direct parties to proceedings toattend a conference with a family and child counsellor or welfareofficer. This has been replaced by section 13C.
667. Newsection 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 tothe proceedings about the family services available to assist themto adjust to that order. As with sections 12E, 12F and 12G,new section 62B ensures that people are made aware of appropriateservices at the appropriate time.
Item 53: Subsection 62G(2)
668. This itemchanges the reference, in subsection 62G(2), to ‘a family andchild counsellor or welfare officer’ to ‘a familyconsultant’, in line with the amendments to the terminologyemployed in the Act.
Item 54: Subsections 62G(4) and (5)
669. This itemchanges the references in subsections 62G(4) and (5), to ‘afamily and child counsellor or welfare officer’ to ‘afamily consultant’, in line with the amendments to theterminology employed in the Act.
670. Toensure that the court makes orders that are suitable to thecirc*mstances and needs of the parties, and which take into accountthe family services available in different areas, the court isrequired to consider seeking advice from a family consultant (if itis a Court that has family consultants) or an appropriatelyqualified professional, either within the court or outside it (suchas a person employed by a Family Relationship Centre) when makingan order under this section.
Item 55: Subsection 62G(6)
671. This itemchanges the reference, in subsection 62G(6), to ‘a family andchild counsellor or welfare officer’ to ‘a familyconsultant’, in line with the amendments to the terminologyemployed in the Act.
Item 56: Section 62H
672. This itemrepeals section 62H which has been incorporated into new sections12B, 12D and 12F.
Item 57: Subsection 65F(1)
673. This itemrepeals subsection 65F(1) which is replaced by proposed section13C.
Item 58: Paragraph 65F(2)(a)
674. This itemchanges the reference, in paragraph 65F(2)(a), to ‘aconference with a family and child counsellor or a welfareofficer’ to ‘family counselling’, in line withthe amendments to the terminology employed in the Act.
Item 59: Paragraph 65L(1)(a)
675. This itemchanges the reference, in paragraph 65L(1)(a), to ‘a familyand child counsellor or welfare officer’ to ‘a familyconsultant’, in line with the amendments to the terminologyemployed in the Act.
Item 60: Paragraph 65L(1)(b)
676. This itemchanges the reference in paragraph 65L(1)(b), to ‘a familyand child counsellor or welfare officer’ to ‘a familyconsultant’, in line with the amendments to the terminologyemployed in the Act.
Item 61: Subsection 65LA(1)
677. Currentsubsection 65LA(1) of the Act details the procedure to be followedby the provider of a post-separation parenting program when aperson is ordered by the court to attend such a program. Suchlevels of detail are unnecessary and are properly decisions for theproviders of programs rather than the legislation. As aresult, subsection 65LA(1) is amended to enable the court to ordera party to attend a post-separation parenting program, withoutgoing into unnecessary detail as to the administration of thatprogram.
Item 62: Subsection 65LA(3) (definition of post-separation parenting program or program )
678. ‘Post-separation parenting program’ is currentlydefined 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 iskept by the Attorney-General’s Department. As this listhas no relation to the quality of services provided, it has littlevalue and is being removed from the Act by item 63.
679. As aresult, the definition of ‘post-separation parentingprogram’ has been amended to remove the reference to ‘aprovider’. Instead the quality of servicesprovided by post-separation parenting programs will be addressed byrequiring 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’sfunding agreements will assist in ensuring a level of quality inthe services that are provided by organisations providing suchpost-separation parenting programs.
680. Thenew definition of ‘post-separation parenting program’has been placed in subsection 4(1) as those accessing thelegislation will often consult that general Interpretation sectionwhen seeking guidance on terms employed in the Act.
Item 63: Subsection 65LA(3)
681. This itemrepeals the definition of ‘post-separation parenting programprovider’ or ‘provider’. See item 62 fordetails.
Item 64: After section 65LA
682. Reflectingthe amendment at Item 62, this item inserts section 65LB, whichprovides that providers of post-separation parenting programs mustmeet conditions. An organisation meets these conditionsif:
(a) theorganisation is a recipient organisation (that is, the organisationis funded directly under a designated funding program or part of aprogram), or
(b) there is arecipient organisation in relation to the organisation (that is,the organisation seeking approval is not directly funded, but ispart of a legal entity, or is a member of a consortium, thatreceives funding under a designated program or part of a program,but that funding is provided to an organisation other than theorganisation seeking approval).
The need to be ableto approve organisations that are not directly funded to providepost-separation parenting programs under a designated program, butwhich have a relationship to an organisation that is funded in thismanner stems from the fact that post-separation parenting programsmay receive funding under the Australian Government’s FamilyRelationship Services Program (FRSP). In order to receivefunding under the FRSP, organisations must meet the FRSP ProgramGuidelines. The Guidelines require funded organisations to beincorporated. As a result, funding may be provided toindividual organisations only and not to a collection oforganisations such as in a consortium. Thus, if a consortiumis successful in its application for funding under the FRSP, themembers of the consortium would either need to form a new legalentity to receive the funding (as anticipated by paragraph65LB(3)(a)), or could nominate a lead organisation to receive thefunding, with the remaining organisations acting as subcontractors(as anticipated by paragraph 65LB(3)(b)).
683. In orderto meet the conditions pursuant to paragraph 65LB(1)(a) anorganisation must be a recipient organisation .Subsection 65LB(2) provides that a recipient organisation is anorganisation that receives, or has been approved to receive,funding to provide services that include post-separation parentingprograms, under a program or part of a program that has beendesignated by the Attorney-General. An organisation thatindividually applies for, and receives, or is approved to receive,funding under a designated program to provide services that includepost-separation parenting programs, will be a recipientorganisation and will therefore meet the conditions in thissection.
684. In orderto be able to meet the conditions pursuant to paragraph 65LB(1)(b)there must be a recipient organisation in relation to theorganisation seeking approval. Subsection 65LB(3) providesthat an organisation is a recipient organisation in relation toanother organisation (the organisation seeking to meet theconditions in this section) in two situations.
685. The firstsituation, covered by paragraph 65LB(3)(a) occurs when theorganisation seeking to meet the conditions is a member of anorganisation that receives, or has been approved to receive,funding in order to provide services that include post-separationparenting programs. This situation may occur when a number oforganisations form a new legal entity in order to receive fundingunder the FRSP. (As set out above, the requirement in theFRSP Guidelines that organisations must be incorporated in order toreceive funding means that a consortium of organisations cannot befunded, so, in order to receive funding, members of a consortiumwould either need to form a new legal entity to receive the funding(as anticipated by here), or nominate a lead organisation toreceive the funding, with the remaining organisations acting assubcontractors (as anticipated by paragraph65LB(3)(a)).
686. The secondsituation, covered by paragraph 65LB(3)(b) occurs when anorganisation receives, or has been approved to receive, funding inorder to provide services that include post-separation parentingprograms and that organisation acts on behalf of a group oforganisations that includes the organisation seekingapproval. (As set out above, the requirement in the FRSPGuidelines that organisations must be incorporated in order toreceive funding means that a consortium of organisations cannot befunded, so, in order to receive funding, members of a consortiumwould either need to form a new legal entity to receive the funding(as anticipated by paragraph 65LB(3)(a), or nominate a leadorganisation to receive the funding, with the remainingorganisations acting as subcontractors (as anticipated here)).
687. Subsection65LB(4) provides that the Attorney-General may designate, for thepurposes of this section, a program or part of a program that isadministered by or on behalf of the Commonwealth Government underwhich funding is provided to organisations for the purposes ofmaking post-separation parenting programs available.
688. Subsection65LB(5) provides that the Attorney-General’s designation offunding programs or parts of programs under subsection 65LB(4) isnot a legislative instrument. A ‘legislativeinstrument’ is defined at section 5 of the LegislativeInstruments Act 2003 . In general terms, a legislativeinstrument is a written document that is of a legislative characterand that is made in the exercise of a power designated byParliament. Requirements relating to registering, tabling,scrutinising and sunsetting all Commonwealth legislativeinstruments are imposed under the Legislative InstrumentsAct. Subsection 65LB(4) has been included to assist readersof the Act, so that they are aware that the requirements of imposedby the Legislative Instruments Act do not apply to instruments madeunder this section.
Item 65: Subsection 67ZA(1)
689. Thisamendment is consequential to the amendments to the terminologyemployed in the Act. The Note to this section explains thatthe heading to section 67ZA is altered in similar terms.
Item 66: Subsection 102A(5) (paragraph (b)of the definition of examined )
690. This itemchanges the reference, in paragraph (b) of the definition of‘examined’ in subsection 102A(5), to ‘a familyand child counsellor or welfare officer’ to ‘a familyconsultant’, in line with the amendments to the terminologyemployed in the Act.
Item 67: Before subsection 111CV(1)
691. Thisamendment is consequential to the amendments to the terminologyemployed in the Act. The section has also been amended toclarify the institutions and individuals it covers. Nosubstantive changes have been made to the section.
Item 68: Subsection 111CV(1)
692. As above,the section has also been amended to clarify the institutions andindividuals it covers. No substantive changes have been madeto the section.
Item 69: Subsection 111CV(5)
693. Due toitem 67, the information that previously appeared at thissubsection now appears, in revised form in subsection111CV(5). As a result subsection 111CV(5) is repealed by thisitem.
Item 70: Subsection 115(2)
694. Thissection has also been amended to clarify the institutions andindividuals it covers. No substantive changes have been madeto the section.
Item 71: Paragraph 123(1)(j)
695. Thisamendment is consequential to the amendments to the terminologyemployed in the Act.
Item 72: Paragraph 123(1)(s)
696. Thisamendment is consequential to the amendments to the terminologyemployed in the Act.
Item 73: Paragraph 123(1)(sa)
697. Thisamendment is consequential to the amendments to the terminologyemployed in the Act.
Item 74: Paragraph 123(1)(sb)
698. Thisamendment is consequential to the amendments to the terminologyemployed in the Act.
Item 75: Paragraph 123(1)(sb)
699. Thisamendment is consequential to the changes to the structure of theAct.
Item 76: Paragraph 123(1)(sc)
700. Thisamendment is consequential to the amendments to the terminologyemployed in the Act.
Item 77: After paragraph 123(1)(sc)
701. Thisamendment is consequential to the amendments to the terminologyemployed in the Act and the introduction of family consultants.
Item 78: Paragraph 123(1)(sd)
702. Thisamendment is consequential to the amendments to the terminologyemployed in the Act and the introduction of family consultants.
Item 79: Paragraph 123(1)(se)
703. Thisamendment is consequential to the amendments to the terminologyemployed in the Act and the introduction of family consultants.
Item 80: Subparagraph 123(1)(sf)(i)
704. Thisamendment is consequential to the changes to the structure of theAct.
Item 81: Subparagraph 123(1)(sf)(ii)
705. Thisamendment is consequential to the changes to the structure of theAct.
Item 82: Subparagraph123(1)(sf)(ii)
706. Thisamendment is consequential to the changes to the structure of theAct.
Item 83: Paragraph 125(1)(ba)
707. Thisamendment is consequential to the amendments to the terminologyemployed in the Act.
Item 84: After paragraph 125(1)(bb)
708. Thisamendment allows regulations to be made in relation to theregistration of arbitration awards, to address a current deficiencyin the regulation-making power.
Item 85: Paragraph 125(1)(bc)
709. Thisamendment is consequential to the amendments at items 76 -79.
Item 86: Paragraph 125(1)(ca)
710. Newparagraph 125(1)(ca), inserted by this item, is consequential tothe amendments to the terminology employed in the Act.
Federal Magistrates Act 1999
Item 87: Section 4
711. The Federal Magistrates Act 1999 (FMA) currently uses the term'primary dispute resolution' to referto the range ofprocedures and services for intervening in, or resolving, disputes(eg counselling (which may not aim toresolve disputes),mediation and conciliation).The use of the term'primary dispute resolution'in the FMA stems from its use inthe Family Law Act. The termis peculiar to family lawand will be removed from the Act by the Bill.
712. Inaddition, Item 93 of this Schedule amends theFMA to providethat Part 4 of the FMA does not apply to proceedings under theFamily Law Act in the Federal Magistrates Court. The resultof this amendment is that the provisions in the FMArelatingto dispute resolution will no longer apply tofamilylawproceedings.
713. As aresult of these two factors it would be inappropriate toretainthe term ‘primary dispute resolution’ inthe FMA. As a result, this item replaces the phrase‘promote the use of primary dispute resolution’ insection 4 of the FMA with ‘promote the use of disputeresolution’.
Item 88: Section 5
714. Section10A of the Act, at Item 36 of this Schedule, provides that theRegulations may prescribe ‘Accreditation Rules’, whichare rules relating to the accreditation of family counsellors,family dispute resolution practitioners and ‘persons toperform other roles prescribed by regulations’ (paragraph10A(1)(c) - this third category will cover workers in services thatare funded by the Australian Government).
715. As theAccreditation Rules will also be relevant to the FederalMagistrates Court, this item inserts a definition of‘Accreditation Rules’ into section 5 of theFMA.
Item 89: Section 5 (definition of Familyand child counsellor )
716. Item 20 ofthis Schedule repeals the definition of ‘family and childcounsellor’ in the Act. This item correspondinglyremoves the term from the FMA.
Item 90: Section 5
717. Section11B of the Act, inserted by item 36 of this Schedule, contains adefinition of ‘family consultant’. This itemcorrespondingly inserts the term in the FMA.
Item 91: Section 5 (definition of Welfare officer )
718. Item 34 ofthis Schedule repeals the definition of ‘welfareofficer’ in the Act. This item correspondingly removesthe term from the FMA.
Item 92: Part 4 (heading)
719. Item 93inserts section 20A into the FMA. That section provides thatfamily law proceedings in the Federal Magistrates Court will becovered by the Act, rather than by provisions in the FMA.This item amends the heading to Part 4 of the FMA to reflect thischange.
Item 93: Before section 21
720. Item 93inserts section 20A into the FMA. Section 20A provides thatfamily law proceedings in the Federal Magistrates Court will becovered by the Act, rather than by provisions in the FMA.
Item 94: Section 21 (definition of primary dispute resolution processes )
721. The term‘primary dispute resolution’ is removed from both theAct and the FMA by the Bill. See item 87 for details.
Item 95: Section 21
722. As set outat item 87, the Bill removes the term ‘primary disputeresolution’ from the FMA and replaces it with the term‘dispute resolution’. Accordingly this itemreplaces 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
723. This itemis consequential to the replacement of the term ‘primarydispute resolution’ with ‘dispute resolution’ inthe FMA.
Item 97: Section 23 (including thenote)
724. This itemis consequential to the replacement of the term ‘primarydispute resolution’ with ‘dispute resolution’ inthe FMA.
Item 98: Section 24
725. This itemis consequential to the replacement of the term ‘primarydispute resolution’ with ‘dispute resolution’ inthe FMA.
Item 99: Subsection 25(1)
726. This itemis consequential to the replacement of the term ‘primarydispute resolution’ with ‘dispute resolution’ inthe FMA.
Item 100: Subsection 27(1)
727. This itemis consequential to the replacement of the term ‘primarydispute resolution’ with ‘dispute resolution’ inthe FMA.
Item 101: Subsections 27(2), 28(1) and (2),and 29(1)
728. This itemis consequential to the replacement of the term ‘primarydispute resolution’ with ‘dispute resolution’ inthe FMA.
Item 102: Paragraph 29(2)(a)
729. This itemis consequential to the replacement of the term ‘primarydispute resolution’ with ‘dispute resolution’ inthe FMA.
Item 103:Subparagraphs 29(2)(b)(i) and (ii)
730. This itemis consequential to the replacement of the term ‘primarydispute resolution’ with ‘dispute resolution’ inthe FMA.
Item 104: Paragraph 29(2)(c)
731. This itemis consequential to the replacement of the term ‘primarydispute resolution’ with ‘dispute resolution’ inthe FMA.
Item 105: Section 30
732. This itemis consequential to the replacement of the term ‘primarydispute resolution’ with ‘dispute resolution’ inthe FMA.
Item 106: After Division 1 of Part7
Division 1A- Administration of Federal Magistrates Court’s familyservices
733. This iteminserts a new Division 1A into Part 7 of the FMA, to deal with theadministration of the Federal Magistrates Court’s familyservices. This Division mirrors new Division 1A of Part IVAof the Act, inserted by item 42 of this Schedule.
Section 93A Chief Executive Officer hasfunctions of family consultants
734. Thissection mirrors new section 38BA of the Act.
735. Section93A confers the functions to be performed by family consultantsunder section 11A of the Act on the Chief Executive Officer of theFederal Magistrates Court.
736. Thisconferral is required as section 93B allows the Chief ExecutiveOfficer of the FMA to delegate powers, functions and duties inrelation to the functions of family consultants mentioned insection 11A of the Act. The Chief Executive Officer cannot delegatefunctions that he or she does not have, so, in order for section93B to work as intended, functions to be performed by familyconsultants under proposed section 11A must be conferred on theChief Executive Officer.
Section 93B Chief Executive Officer maydelegate powers and functions that relate to familyconsultants
737. Thissection permits the Chief Executive Officer to delegate thosefunctions conferred under section 93A, to allow the Chief ExecutiveOfficer to control the work flow to individual family consultants,to ensure that they are able to provide services to the court andpeople involved in proceedings in the most efficient and effectiveway.
738. The mannerin which the Chief Executive Officer chooses to delegate suchfunctions will be a decision for him or her. For example, theChief Executive Officer may choose to delegate the functions offamily consultants to a ‘Principal familyconsultant’. The Bill has been designed to allowmaximum flexibility for the CEO in thisregard.
Section 93C Chief Executive Officer maygive directions that relate to family services functions
739. The ChiefExecutive Officer of the Federal Magistrates Court has power, undersubsection96(2) of the FMA, to do all things necessary orconvenient to be done for the purpose of assisting the ChiefFederal Magistrate to manage the administrative affairs of theFederal Magistrates Court. This situation will not be changedby the proposed amendments.
740. To put thematter beyond doubt, section 93C clarifies that the Chief ExecutiveOfficer may give directions to family consultants, and courtofficers or staff members performing the functions of a familycounsellor or family dispute resolution practitioner.
Section 93D Chief Executive Officer mayauthorise officer or staff member to act as family counsellor orfamily dispute resolution practitioner
741. Sections10C and 10G of the Act explain who is a ‘familycounsellor’ or a ‘family dispute resolutionpractitioner’. One category of family counsellorand family dispute resolution practitioner is a person who isauthorised by the Chief Executive Officer of the FederalMagistrates Court, to act as a family counsellor under this section(as per paragraphs 10C(1)(d) and 10G(1)(d)).
742. Subsection93D(3) ensures that family consultants who are authorised by theChief Executive Officer, under this section, to provide familycounselling or family dispute resolution for the FederalMagistrates Court do not combine the two roles, by, for example,attempting to provide services as both a family consultant and afamily dispute resolution practitioner in the one case. It isimperative that the work of family consultants is kept separatefrom the work of family counsellors and family dispute resolutionpractitioners as the confidentiality and admissibility applying tothe processes are completely different and it would be impossiblefor a practitioner to offer both types of services withoutcompromising eachone.
Item 107:Paragraph 87(1)(f)
743. Thisamendment is consequential to the amendments to the terminologyemployed in the Act and the FMA.
Item 108: Subsection 87(2)
744. Thisamendment is consequential to the amendments to the terminologyemployed in the Act and the FMA.
Item 109: At the end of subsection99(1)
745. Section 99of the FMA lists the officers of the Federal Magistrates Court.This item adds ‘family consultants’ to that list.
Item 110: Paragraph 102(2)(k)
746. Thisamendment is consequential to the amendments to the terminologyemployed in the Act and the FMA.
Item 111: After section 111
Section 111A: Family consultants
747. Familyconsultants may be officers of the Federal Magistrates Court (asper Item109). Section 111A provides that if a familyconsultant is an officer of the Federal Magistrates Court, he orshe is to be engaged under the Public Service Act1999 . This is the position in relation to staff of theFederal Magistrates Court, under subsection 112(2) of the FMA.
748. The Noteto this section clarifies that family consultants who are notofficers of the Federal Magistrates Court may be appointed underregulations made under the Act.
Item 112: After subsection 115(1)
749. This itemmirrors item 44 of this Schedule, which relates to section 38R ofthe Act. Section 115 of the FMA allows the Chief ExecutiveOfficer of the Federal Magistrates Court to engageconsultants. Item 112 explicitly provides that the ChiefExecutive Officer may engage people to perform family counsellingand family dispute resolution.
Item 113: Subsection 115(2)
750. Thisamendment is consequential to the amendment at item 112.
Income Tax Assessment Act 1997
Item 113A: Subsection 30-70(1) (table item 8.1.1)
751. Items 113Aand 113B amend the Income Tax Assessment Act 1997 (the ITAA)and are consequential to the amendments to the Act introduced bythe Bill.
752. Subdivision 30-B of Part 2-5 of Chapter 2 of the ITAA deals withorganisations to which tax deductible gifts may be made.These organisations are ‘Deductible Gift Recipients’(DGRs). DGRs are either endorsed by the Australian TaxationOffice (ATO) or listed by name in the ITAA. If anorganisation does not meet the prerequisites for endorsem*nt as aDGR that are set out in the ITAA by DGR category (eg education,research etc) it may apply to be specifically listed in the ITAA asa DGR.
753. Currently,the ITAA refers to approved counselling and mediation organisationsunder the Act, as a means of limiting the organisations that areeligible to apply for endorsem*nt as a DGR under the general DGRcategory of ‘the family’.
754. The Billremoves the concept of ‘approved counsellingorganisations’ and ‘approved mediationorganisations’ from the Act (after a transitional period, asprovided in Part 4 of Schedule 4 of the Bill). As a result,the references in the ITAA to approved organisations must beremoved, as the concept will no longer be meaningful.
755. Ratherthan refer to approved organisations, the ITAA will refer toorganisations that receive funding from the Commonwealth to providefamily counselling or family dispute resolution within the meaningof the Act. In practice, the group of organisations able tomeet this prerequisite will be largely unchanged, as all approvedorganisations are currently funded under the AustralianGovernment’s Family Relationships Services Program.
756. It shouldbe noted that organisations that meet this prerequisite do notautomatically obtain DGR status as a result: rather, they are onlyeligible to apply for DGR endorsem*nt. In order to beendorsed by the ATO as a DGR, organisations must also be anon-profit company and establish and maintain a public fund.The final decision as to whether an organisation will be endorsedas a DGR rests with the ATO.
Subsection 30-70(1) (table item 8.1.1)
757. Currently,table item 8.1.1 at subsection 30-70(1) of the ITAA sets out thecategories of funds, authorities or institutions eligible to beendorsed as a DGR under the general DGR category of ‘thefamily’. It also sets out any special conditions thatsuch funds, authorities or institutions must meet.
758. This itembreaks current table item 8.1.1 into two separate table items- new table item 8.1.1, which relates to companies thatprovide marriage education under the MarriageAct1961 (the Marriage Act) and tableitem 8.1.2, which relates to companies that provide services thatinclude family counselling or family dispute resolution under theAct. The term ‘non-profit company’ has replaced‘voluntary organisation’, which currently appears intable item 8.1.1 has been replaced with the term ‘non-profitcompany’ to bring the item into line with the rest ofSubdivision 30. The term ‘non-profit company’ isdefined in the ITAA.
759. Thecompanies referred to at table item 8.1.1 must meet the‘special condition’ set out at section 30-75 of theITAA, which provides that those companies must have been approvedto conduct programs of marriage education under section 9C of theMarriage Act. This requirement is unchanged from the currentITAA.
760. Thecompanies referred to at table item 8.1.2 are not required to meetany ‘special condition’. However, in order to beeligible for endorsem*nt as a DGR these non-profit companiesmust:
· receive Commonwealth funding to provide services that includefamily counselling or family dispute resolution within the meaningof the Act, and
· establish and maintain a ‘public fund’ solely for thepurpose of providing money to be used in providing familycounselling or family dispute resolution to individuals inAustralia.
761. Therequirements of a public fund include that the fund only containsgifts and is kept separate from other monies and income.Monies and property in the public fund must only be used for theprinciple purpose of the DGR, or be transferred to another DGR ifthe public fund is wound up. Further, a committee that isaccountable to the public must be established to undertake theadministration of the fund.
Item 113B: Section 30-75
762. Currentlytable item 8.1.1 at subsection 30-70(1) of the ITAA sets out thecategories of funds, authorities or institutions eligible to beendorsed as a DGR under the DGR category of ‘thefamily’. It also sets out any special conditions thatsuch funds, authorities or institutions must meet. Thesespecial conditions are set out at section 30-75.
763. Table item8.1.1 at subsection 30-70(1) is amended by item113A to referseparately to companies that provide marriage education under theMarriageActand companies that provide services thatinclude family counselling or family dispute resolution under theAct. Only companies that provide marriage education will berequired to comply with a special condition. That specialcondition, which is unchanged from that which currently applies inrelation to organisations providing marriage education, is set outat section 30-75. This section provides that, in order to beeligible to be endorsed by the ATO as a DGR, such companies musthave been approved as an organisation conducting programs ofmarriage education by the responsible Minister under section 9C ofthe Marriage Act. Currently the responsible Minister is theMinister for Families, Community Services and IndigenousAffairs.
Marriage Act1961
Item 114: Section9D
764. Section 9Dof the Marriage Act 1961 refers to organisations that areapproved as counselling organisations under the Act. The section isrepealed as a consequence of the removal of the concept of approvedorganisations from the Act.
Item 115: Paragraphs 16(2A)(a)
765. Thisamendment is consequential to the amendments to the terminologyemployed in the Act.
Item 116: Paragraph 16(2A)(b)
766. Thisamendment is consequential to the amendments to the terminologyemployed in the Act.
Item 117: Subsection 16(7)
767. Thisamendment is consequential to the amendments to the terminologyemployed in the Act.
Part 4 - Transitional mattersrelating to family counselling and family disputeresolution
768. Part 4sets out transitional arrangements. These include the secondstage of amendments to the approval process for organisations toreflect the new terminology to be introduced into the Act oncommencement (which is expected to be 1 July 2006). At thistime these amendments will remove the terms ‘family and childcounselling’, ‘family and child counsellor’,‘family and child mediation’ and ‘family andchild mediator’ from the Act. Relatedly, the terms‘approved counselling organisation’ and ‘approvedmediation organisation’ will be removed from the Act andreplaced with the new terms ‘approved family counsellingorganisation’ and ‘approved family dispute resolutionorganisation’.
769. Existing services will not be affected by the changes to theapproval process. Item 120 of the Bill provides that if,immediately before Part 3 of Schedule 4 commences, an organisationis approved as a counselling organisation it is, during thetransition period, taken to be approved as a family counsellingorganisation under item10E of Schedule 4. Similarly, Item 121provides that if, immediately before Schedule 4 commences, anorganisation is approved as a mediation organisation it is, duringthe transition period, taken to be approved as a family disputeresolution organisation under item 10N of Schedule 4.
Item 118: Definitions
770. Subsection118(1) provides that terms used in this Part that are defined inthe Act have the same meaning as they have in that Act. Thisdefinition is needed as the provisions in this Part will not beinserted in the Act, but rather will appear in the Act created whenthis Bill is passed by Parliament, that is, the Family Law Amendment (SharedParental Responsibility) Act 2005 (the Shared ParentalResponsibility Act) .
771. Subsection118(2) sets out the definition of terms used in this Part.The defined terms are:
° ‘approved family counselling organisation’, whichis:
- anorganisation in respect of which an approval is in force under item120. (Item 120 allows the Attorney-General to approve familycounselling organisations during the transition period), or
- anorganisation that is taken to be an approved family counsellingorganisation because of item 123. (Item 123 provides that organisations that,immediately before the commencement of Part 3 of this Schedule, areapproved counselling organisations under section 13A of the Act aretaken to be approved as family counselling organisations under item123).
° ‘approved family dispute resolution organisation’,which is:
- anorganisation in respect of which an approval is in force under item125. (Item 125 allows the Attorney-General to approve familydispute resolution organisations during the transitionperiod), or
- anorganisation that is taken to be an approved family counsellingorganisation because of item 128. (Item 128 provides thatorganisations that, immediately before the commencement of Part 3of this Schedule, are approved mediation organisations undersection 13B of the Act are taken to be approved as family disputeresolution organisations under item 128).
° ‘commencement’, which is the time at which Part 3 ofthis Schedule commences, which is a date to be fixed byProclamation (and is expected to be 1 July 2006).
Item 119:Persons who are taken to be family counsellors during thetransition period
773. This willensure that professionals who are currently providing theseservices, and people who begin providing family counsellingservices will continue to offer these services during thetransition period.
Item 120: Approval of family counsellingorganisations
774. To ensurethat professionals who are currently delivering family and childcounselling and family and child mediation are able to continue tooffer these services (which are termed ‘familycounselling’ an ‘family dispute resolution’ underthe Bill) without interruption on the introduction of theaccreditation regime a transition period is provided.
775. As aresult, the Attorney-General needs to be able to continue toapprove organisations as family counselling organisations duringthe transition period. This item allows such approvals tooccur. Family counselling organisations approved by theAttorney-General under this item will also be able to authorisepeople to provide family counselling on their behalf in thetransition period, provided that their approval status is notterminated or revoked. The people thus authorised are takento be ‘family counsellors’ under section 10C of theAct, and do not, during the transition period, need toindependently meet the Accreditation Rules.
776. TheAttorney-General may approve an organisation as a familycounselling organisation under this item only if he or she issatisfied that:
· the organisation is a recipient organisation (that is, theorganisation is funded directly under a designated funding programor 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, thatreceives funding under a designated program or part of a program,but that funding is provided to an organisation other than theorganisation seeking approval).
777. The needto be able to approve organisations that are not directly funded toprovide family counselling under a designated program, but whichhave a relationship to an organisation that is funded in thismanner stems from the fact that approved family counsellingorganisations will receive funding under the AustralianGovernment’s Family Relationship Services Program(FRSP). In order to receive funding under the FRSP,organisations must meet the FRSP Program Guidelines. TheGuidelines require funded organisations to beincorporated. As a result, funding may be provided toindividual organisations only and not to a collection oforganisations such as in a consortium. Thus, if a consortiumis successful in its application for funding under the FRSP, themembers of the consortium would either need to form a new legalentity to receive the funding (as anticipated by paragraph120(3)(a)), or could nominate a lead organisation to receive thefunding, with the remaining organisations acting as subcontractors(as anticipated by paragraph 120(3)(a)).
778. Therequirement that organisations must be funded (whether directly orindirectly) in order to be approved, reflects current practice, asall approved organisations are currently funded under theFRSP. Accountability requirements under the FRSP assist inensuring a level of quality in the services that are provided byapproved organisations.
779. In orderto be approved pursuant to paragraph 120(1)(a) an organisation mustbe a recipient organisation . Subitem 120(2) providesthat a recipient organisation is an organisation that receives, orhas been approved to receive, funding to provide services thatinclude family counselling, under a program or part of a programthat has been designated by the Attorney-General. Anorganisation that individually applies for, and receives, or isapproved to receive, funding under a designated program to provideservices that include family counselling, will be a recipientorganisation and will therefore be eligible for approval as afamily counselling organisation.
780. In orderto be approved pursuant to paragraph 120(1)(b) there must be arecipient organisation in relation to the organisation seekingapproval. Subitem 120(3) provides that an organisation is arecipient organisation in relation to another organisation (theorganisation seeking approval) in two situations.
781. The firstsituation, covered by paragraph 120(3)(a) occurs when theorganisation seeking approval is a member of an organisation thatreceives, or has been approved to receive, funding in order toprovide services that include family counselling. Thissituation may occur when a number of organisations form a new legalentity in order to receive funding under the FRSP. (Therequirement in the FRSP Guidelines that organisations must beincorporated in order to receive funding means that a consortium oforganisations cannot be funded, so, in order to receive funding,members of a consortium would either need to form a new legalentity to receive the funding (as anticipated by here), or nominatea lead organisation to receive the funding, with the remainingorganisations acting as subcontractors (as anticipated by paragraph120(3)(a)).
782. The secondsituation, covered by paragraph 120(3)(b) occurs when anorganisation receives, or has been approved to receive, funding inorder to provide services that include family counselling and thatorganisation acts on behalf of a group of organisations thatincludes the organisation seeking approval. (As set outabove, the requirement in the FRSP Guidelines that organisationsmust be incorporated in order to receive funding means that aconsortium of organisations cannot be funded, so, in order toreceive funding, members of a consortium would either need to forma new legal entity to receive the funding (as anticipated byparagraph 120(3)(a), or nominate a lead organisation to receive thefunding, with the remaining organisations acting as subcontractors(as anticipated here).
783. Subitem120(4) provides that the Attorney-General may designate, for thepurposes of subitem 120(1), a program or part of a program that isadministered by or on behalf of the Commonwealth Government underwhich funding is provided to organisations for the purposes ofmaking family counselling services available.
784. Subitem120(4) provides that the Attorney-General’s designation offunding programs or parts of programs under subitem 120(4) is not alegislative instrument. A ‘legislative instrument’ isdefined at section 5 of the Legislative Instruments Act2003 . In general terms, a legislative instrument is awritten document that is of a legislative character and that ismade in the exercise of a power designated by Parliament.Requirements relating to registering, tabling, scrutinising andsunsetting all Commonwealth legislative instruments are imposedunder the Legislative Instruments Act. Subitem 120(4) hasbeen included to assist readers of the Act, so that they are awarethat the requirements of imposed by the Legislative Instruments Actdo not apply to instruments made under this section.
785. Thecapacity to approve organisations subject to conditions (as percurrent section 13C of the Act) has been removed. It isintended that quality issues should be addressed through the FRSPfunding contracts, as this provides a stringent and enforceablemeans of ensuring and addressing servicestandards.
786. As iscurrently the case under section 13 of the Act, an organisation maybe approved as both a family counselling and a family disputeresolution organisation.
Item 121: Termination of and revocation ofapprovals
787. Item 121provides that organisations must be funded (whether directly orindirectly) in order to be approved by the Attorney-General as afamily counselling organisation. These organisationswill receive funding under the FRSP. Accountabilityrequirements under the FRSP assist in ensuring a level of qualityin the services that are provided by approvedorganisations.
788. Asapproval of, and the capacity to monitor the quality of servicesdelivered by, organisations is tied to funding, this item providesthat an organisation ceases to be approved as a family counsellingorganisation under item 120 if the organisation ceases to receive,or be approved to receive, funding (either directly, if theorganisation is a recipient organisation as set out at subitem120(2), or indirectly, if there is a recipient organisation inrelation to the organisation, as per subitem 120(3)) under aprogram or part of a program designated by the Attorney-Generalunder subitem 120(4).
789. Subitem121(2) provides that if an organisation that is approved under item120 requests that its approval is revoked, the Attorney-Generalmust revoke that approval.
790. Subitem121(3) provides that if the Attorney-General revokes a familycounselling organisation’s approval under this item, he orshe must do so by notice in writing to the organisationconcerned.
Item 122: Minister to publish lists ofapproved family counselling organisations
791. Item 122requires the Attorney-General to publish, at least annually, a listof all approved family counselling organisations. Thisprovision ensures that the public is able to easily access thisinformation, in the interests of transparency. It reproduces,in substantive terms, current section 13E of the Act.
Item 123: Approved counsellingorganisations become approved family counsellingorganisations
792. In orderto ensure that organisations that have been approved as counsellingorganisations by the Attorney-General under section 13A of the Actare able to continue offering services without interruptionthroughout the transition period, this item provides that if,immediately before Part 3 of Schedule 4 commences, an organisationis approved as a counselling organisation it is, during thetransition period, taken to be approved as a family counsellingorganisation under item 120.
Item 124: Persons who are taken to befamily dispute resolution practitioners during the transitionperiod
793. To ensurethat professionals who are currently delivering family and childcounselling and family and child mediation are able to continue tooffer these services (which are termed ‘familycounselling’ an ‘family dispute resolution’ underthe Bill) without interruption on the introduction of theaccreditation regime a transition period is provided.
794. During the‘transition period’ approved organisations will be ableto continue to authorise family dispute resolutionpractitioners. Professionals so authorised will be taken tobe accredited during the transition period.
795. The Billpreserves the ability of organisations that are currently approvedas mediation organisations to authorise people to provide familydispute resolution on their behalf in the transition period,provided that the organisations approval status is not terminatedor revoked during the transition period. The people thusauthorised are taken to be ‘family dispute resolutionpractitioners’ under section 10G of the Act, introduced bythis Schedule, and do not, during the transition period, need toindependently meet the Accreditation Rules.
796. TheAttorney-General will also be able to continue to approveorganisations as family dispute resolution organisations during thetransition period, under item 125. Family dispute resolutionorganisations approved by the Attorney-General under that item willalso be able to authorise people to provide family counselling ontheir behalf in the transition period, provided that their approvalstatus is not terminated or revoked. The people thusauthorised are taken to be ‘family counsellors’ undersection 10Ce of the Act, introduced by this Schedule, and do not,during the transition period, need to independently meet theAccreditation Rules.
797. Inaddition 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 theRegulations (paragraph (c) of the definition of family and childmediator in subsection 4(1) of the Act). In order to ensurethat these people can continue to provide services, a person who isa family and child mediator under paragraph (c) of the definitionof family and child mediator (that is, because they meet therequirements set out in the Regulations, or who meet thoserequirements in the first twelve months of the transition period,will also be taken to be family dispute resolution practitionersunder section 10J of the Act.
Item 125: Approval of family disputeresolution organisations
798. To ensurethat professionals who are currently delivering family and childcounselling and family and child mediation are able to continue tooffer these services (which are termed ‘familycounselling’ an ‘family dispute resolution’ underthe Bill) without interruption on the introduction of theaccreditation regime a transition period is provided.
799. As aresult, the Attorney-General needs to be able to continue toapprove organisations as family dispute resolution organisationsduring the transition period. This item allows such approvalsto occur. Family dispute resolution organisations approved bythe Attorney-General under this item will be able to authorisepeople to provide family dispute resolution on their behalf in thetransition period, provided that their approval status is notterminated or revoked. The people thus authorised are takento be ‘family dispute resolution practitioners’ undersection 10J of the Act, introduced by this Schedule, and do not,during the transition period, need to independently meet theAccreditation Rules.
800. TheAttorney-General may approve an organisation as a family disputeresolution organisation under this item only if he or she issatisfied that:
(a) theorganisation is a recipient organisation (that is, the organisationis funded directly under a designated funding program or part of aprogram), or
(b) there is arecipient organisation in relation to the organisation (that is,the organisation seeking approval is not directly funded, but ispart of a legal entity, , or is a member of a consortium, thatreceives funding under a designated program or part of a program,but that funding is provided to an organisation other than theorganisation seeking approval).
The need to be ableto approve organisations that are not directly funded to providefamily dispute resolution under a designated program, but whichhave a relationship to an organisation that is funded in thismanner stems from the fact that approved family dispute resolutionorganisations will receive funding under the AustralianGovernment’s Family Relationship Services Program(FRSP). In order to receive funding under the FRSP,organisations must meet the FRSP Program Guidelines. TheGuidelines require funded organisations to beincorporated. As a result, funding may be provided toindividual organisations only and not to a collection oforganisations such as in a consortium. Thus, if a consortiumis successful in its application for funding under the FRSP, themembers of the consortium would either need to form a new legalentity to receive the funding (as anticipated by paragraph125(3)(a)), or could nominate a lead organisation to receive thefunding, with the remaining organisations acting as subcontractors(as anticipated by paragraph 125(3)(a)).
801. Therequirement that organisations must be funded (whether directly orindirectly) in order to be approved, reflects current practice, asall approved organisations are currently funded under theFRSP. Accountability requirements under the FRSP assist inensuring a level of quality in the services that are provided byapproved organisations.
802. Inorder to be approved pursuant to paragraph 125(1)(a) anorganisation must be a recipient organisation . Subitem125(2) provides that a recipient organisation is an organisationthat receives, or has been approved to receive, funding to provideservices that include family dispute resolution, under a program orpart of a program that has been designated by theAttorney-General. An organisation that individually appliesfor, and receives, or is approved to receive, funding under adesignated program to provide services that include family disputeresolution , will be a recipient organisation and will therefore beeligible for approval as a family dispute resolutionorganisation.
803. Inorder to be approved pursuant to paragraph 125(1)(b) there must bea recipient organisation in relation to the organisation seekingapproval. Subitem 125(3) provides that an organisation is arecipient organisation in relation to another organisation (theorganisation seeking approval) in two situations.
804. Thefirst situation, covered by paragraph 125(3)(a) occurs when theorganisation seeking approval is a member of an organisation thatreceives, or has been approved to receive, funding in order toprovide services that include family dispute resolution. Thissituation may occur when a number of organisations form a new legalentity in order to receive funding under the FRSP. (As setout above, the requirement in the FRSP Guidelines thatorganisations must be incorporated in order to receive fundingmeans that a consortium of organisations cannot be funded, so, inorder to receive funding, members of a consortium would either needto form a new legal entity to receive the funding (as anticipatedby here), or nominate a lead organisation to receive the funding,with the remaining organisations acting as subcontractors (asanticipated by paragraph 125(3)(b)).
805. Thesecond situation, covered by paragraph 125(3)(b) occurs when anorganisation receives, or has been approved to receive, funding inorder to provide services that include family disputeresolution and that organisation acts on behalf of a group oforganisations that includes the organisation seekingapproval. (As set out above, the requirement in the FRSPGuidelines that organisations must be incorporated in order toreceive funding means that a consortium of organisations cannot befunded, so, in order to receive funding, members of a consortiumwould either need to form a new legal entity to receive the funding(as anticipated by paragraph 125(3)(a), or nominate a leadorganisation to receive the funding, with the remainingorganisations acting as subcontractors (as anticipated here).
806. Subitem 125(4) provides that the Attorney-General may designate,for the purposes of subitem 125(1), a program or part of a programthat is administered by or on behalf of the Commonwealth Governmentunder which funding is provided to organisations for the purposesof making family dispute resolution services available.
807. Subitem 125(4) provides that the Attorney-General’sdesignation of funding programs or parts of programs under subitem125(4) is not a legislative instrument. A ‘legislativeinstrument’ is defined at section 5 of the LegislativeInstruments Act 2003 . In general terms, a legislativeinstrument is a written document that is of a legislative characterand that is made in the exercise of a power designated byParliament. Requirements relating to registering, tabling,scrutinising and sunsetting all Commonwealth legislativeinstruments are imposed under the Legislative InstrumentsAct. Subitem 125(4) has been included to assist readers ofthe Act, so that they are aware that the requirements of imposed bythe Legislative Instruments Act do not apply to instruments madeunder this section.
808. Thecapacity to approve organisations subject to conditions (as percurrent section 13C of the Act) has been removed. It isintended that quality issues should be addressed through the FRSPfunding contracts, as this provides a stringent and enforceablemeans of ensuring and addressing servicestandards.
809. Asis currently the case under section 13 of the Act, an organisationmay be approved as both a family counselling and a family disputeresolution organisation.
Item 126: Termination of and revocation ofapprovals
810. Item125 provides that organisations must be funded (whether directly orindirectly) in order to be approved by the Attorney-General as afamily dispute resolution organisation. Theseorganisations will receive funding under the FRSP.Accountability requirements under the FRSP assist in ensuring alevel of quality in the services that are provided by approvedorganisations.
811. Asapproval of, and the capacity to monitor the quality of servicesdelivered by, organisations is tied to funding, this item providesthat an organisation ceases to be approved as a family disputeresolution organisation under item 125 if the organisation ceasesto receive, or be approved to receive, funding (either directly, ifthe organisation is a recipient organisation as set out at subitem125(2), or indirectly, if there is a recipient organisation inrelation to the organisation, as per subitem 125(3)) under aprogram or part of a program designated by the Attorney-Generalunder subitem 125(4).
812. Subitem 126(2) provides that if an organisation that is approvedunder item 10N requests that its approval is revoked, theAttorney-General must revoke that approval.
813. Subitem 126(3) provides that if the Attorney-General revokes afamily dispute resolution organisation’s approval under thisitem, he or she must do so by notice in writing to the organisationconcerned.
Item 127: Minister to publish lists ofapproved family dispute resolution organisations
814. Item127 requires the Attorney-General to publish, at least annually, alist of all approved family dispute resolution organisations.This provision ensures that the public is able to easily accessthis information, in the interests of transparency. Itreproduces, in substantive terms, current section 13E of theAct.
Item 128: Approved mediation organisationsbecome approved family dispute resolution organisations
815. Inorder to ensure that organisations that have been approved asmediation organisations by the Attorney-General under section 13Bof the Act are able to continue offering services withoutinterruption throughout the transition period, this item providesthat if, immediately before Part 3 of Schedule 4 commences, anorganisation is approved as a mediation organisation it is, duringthe transition period, taken to be approved as a family disputeresolution organisation under item 125.
Part 5 - Application andtransitional provisions relating to other changes to disputeresolution
Item 129: Definition of commencement
816. Thisitem defines that in this Part of Schedule 4‘commencement’ is the time at which Part 3 of thisSchedule commences, which is a date to be fixed by Proclamation,and which is expected to be 1 July 2006.
Item 130: Notices filed under section15
817. Currently section 15 of the Act allows a party to a marriage tofile a notice in the Family Court or the Family Court of WesternAustralia, stating that the party wishes to be assisted by thecounselling facilities of that court. If such a notice isfiled, arrangements must be made for the parties to the marriage toattend an interview with a family and child counsellor to assistwith a possible reconciliation, or to improve their relationshipwith each other or with any of their children.
818. Thisitem provides that if at commencement (see item 129) a notice undercurrent section 15 of the Act has been filed, but has not yet beenacted on, an appropriate officer of the court in which the noticewas filed must arrange for the parties to the marriage to see afamily counsellor.
Item 131: Arbitration awards registeredunder section 19D are taken to be registered under section13H
819. Current subsection 19D(5) of the Act provides that a party to anaward made in arbitration may register the award in the court thatordered the arbitration under that section.
820. Current subsection 19E(2) provides that a party to an award made inprivate arbitration may register the award in any court withjurisdiction under the Act.
821. Anaward that is registered with a court under subsections 19D(5) or19E(5) has the same effect as a decree made by the court in whichit is registered.
822. Thisitem provides that an arbitration award that had been registeredunder sections 19D or 19E of the Act at any time beforecommencement (see item 129) and is still registered immediatelybefore commencement, continues to have effect as if it had beenregistered under new section 13H of the Act. Section 13Hreproduces current subsections 19D(5) and 19E(2) of the Act (withrelevant changes to terminology).
Item 132: Powers under Division 4 of PartIIIB of the Family Law Act 1975 may be exercised in relation tosection 19D arbitration and private arbitration
823. Currently the Act refers to two types of arbitration -‘section 19D arbitration’ and ‘privatearbitration’. These terms are replaced in the Bill by‘section 13E arbitration’ and ‘relevant propertyor financial arbitration’ (see subsection 10L(2), inserted byitem36 of this Schedule).
824. Thisitem provides that for the purposes of the sections 13G, 13H, 13Jand 13K, a reference to section 13E arbitration includes areference to section 19D arbitration; and a reference to relevantproperty or financial arbitration includes a reference to privatearbitration. Subsection 19E(2) provides that a party to anaward made in private arbitration may register the award in anycourt with jurisdiction under the Act.
Item 133: Subsection 44(1B)certificates
826. Item47 of this Schedule updates the titles of the professionals fromwhom a certificate may be obtained in line with the changes toterminology employed in theAct.
827. Thisitem provides that a certificate provided by a family and childcounsellor, or other appropriate person, in line with therequirements imposed under subsection 44(1B) before commencementmay be filed in relation to an application for divorce to satisfythe requirement under section 44(1B) as amended by thisSchedule.
Item 134: Request for counselling undersection 62C or 62CA
828. Current sections 62C and 62CA of the Act allow parties toproceedings, and other specified people, to file in the FamilyCourt or the Family Court of Western Australia (under section 62C),or the Federal Magistrates Court (under section 62CA) a noticerequesting the assistance of the counselling facilities of thatcourt. If such a notice is filed, specified court staff mustarrange for the parties to be interviewed by a family and childcounsellor or a welfare officer.
829. Thisitem provides that if a notice has been filed under section 62C or62CA of the Act, but has, at commencement, not been acted upon, anappropriate officer of the court in which the notice was filed mustarrange for the parties to be interviewed by a familycounsellor.
Item 135: Order under subsection62F(2)
830. Subsection 62F(2) of the Act allows the court to make an orderdirecting the parties to proceedings where the care, welfare anddevelopment of a child is relevant, to attend a conference with afamily and child counsellor or a welfare officer.
831. Thisitem provides that if, at commencement, an order under subsection62F(2) of the Act has not yet been complied with, the parties mayattend a conference with a family counsellor, and such attendancewill be regarded as complying with the order.
Item 136: Reports under section 62G
832. In proceedings where the care, welfare and development of achild is relevant, subsection 62G(2) of the Act allows the court todirect a family and child counsellor or welfare officer to give thecourt a report on relevant matters. Items 53 to 55 of thisSchedule replace the references to ‘family and childcounsellor or welfare officer’ in section 62G with‘family consultant’.
833. Thisitem provides that if a family and child counsellor or welfareofficer has been directed, under subsection 62G(2), to give thecourt a report and, at commencement, has not yet done so, he or shemust still provide the report and references in the amended section62G to a ‘family consultant’ are taken to be referencesto the person who supplies the report.
Item 137: Pre-parenting order counsellingfor the purposes of section 65F
834. Current section 65F provides that the court must not make aparenting order (subject to some exceptions) unless the parties toproceedings have attended a conference with a family and childcounsellor or welfare officer to discuss the matter to which theproceedings relate. Items 57 and 58 of this Schedule replacethe references to ‘family and child counsellor or welfareofficer’ in section 65G with ‘familyconsultant’.
835. Thisitem provides that if, before commencement, parties to proceedingshave attended a conference with a family and child counsellor orwelfare officer to discuss the matters to which the proceedingsrelate, the attendance at that conference is taken to satisfy therequirement in section 65F(2) as amended by this Bill to attend aconference with a family consultant.
Item 138: Supervision etc. of parentingorders
836. Current section 65L provides that if a court makes a parentingorder it may also make an order requiring a family and childcounsellor or welfare officer to supervise compliance with thatorder or give assistance to a party to comply with thatorder.
837. Thisitem provides that if such an order is made before commencement,the court may make another order substituting a family consultantfor the family and child counsellor or welfare officer specified inthe original order.
Item 138A:Application of amendments of the Income Tax Assessment Act1997
838. Thisitem provides that the amendments to the ITAA, set out initems113A and 113B apply to gifts made on or after thecommencement of Part 3 of Schedule 4 of the Bill. Part 3 ofSchedule 4 will commence on a day to be fixed byProclamation.
Item 139: Regulations may prescribetransitional matters
839. Thisitem provides that regulations may be made that prescribematters:
° of a transitional nature relating to the amendments or repeals inthis Schedule
° required or permitted by this Schedule to be prescribed, or
° necessary or convenient to be prescribed for carrying out or givingeffect to this Schedule.
SCHEDULE 5- REPRESENTATION OF CHILD’S INTERESTS BY INDEPENDENTCHILDREN’S LAWYER
840. Schedule 5 implements a number of the recommendations made by theFamily Law Council (the Council) in its report, Pathways forChildren: A review of children’s representation in familylaw (the Report).
841. Theformer Attorney-General,theHonDarylWilliamsAM QC MP, requested thatthe Council prepare the Report as a response to recommendation 21of the Family Pathways Advisory Group’s 2001 report, Outof the Maze: Pathways to the Future for Families ExperiencingSeparation . In doing so, the Council was requested toreview the role and the basis of appointment of childrepresentatives, particularly in light of the Council’s 1996report, Involving and Representing Children in FamilyLaw.
842. Theamendments aim to strengthen the role of the child representativeby providing further guidance to lawyers acting in the role.Along with the Guidelines for child representatives: Practicedirections and guidelines (the Guidelines), released by theFamily Court of Australia, the amendments also aim to provideclarity and understanding to those parties participating inproceedings where a child representative is involved.
Part 1 -Amendments
Family LawAct 1975
Item 1 -Subsection 4(1) (definition of child representative )
843. Item1 repeals the definition of ‘childrepresentative’. The role of the ‘childrepresentative’ will now be referred to as ‘independentchildren’s lawyer’ to help children and parentsunderstand the neutrality and independence of the role. TheCouncil considered that the term ‘child representative’creates confusion, particularly for children who may expect thatthe child’s representative will act on the child’sinstructions.
844. Inthe Report, the Council recommended that the term‘independent lawyer’ be used. However, theGovernment considers that the term ‘independentchildren’s lawyer’ is more descriptive and will be ofuse in identifying that the independent children’s lawyer isassociated with the child and not the other parties involved in theproceedings.
Item 2 -Subsection 4(1)
845. Item2 inserts a definition of ‘independent children’slawyer’ into the consolidated dictionary at section 4 of theAct. Section 4 sets out the definitions for Part VII of theAct. ‘Independent children’s lawyer’ willmean a lawyer that represents the child’s interests inproceedings, where that lawyer has been appointed under a courtorder made under subsection 68L(2) of the Act.
846. Subsection 68L(2) explains that a court may order that achild’s interests be independently represented by a lawyer ifit appears that such representation is necessary in theproceedings. The court may also make any other such orders asit considers necessary to secure that representation.
Item 3 -Subsection 4(1)
847. Item3 inserts a definition of ‘lawyer’ into theconsolidated dictionary at section 4 of the Act. Subsection 4sets out the definitions for Part VII of the Act. A‘lawyer’ means a person enrolled as a legalpractitioner of a federal court or the Supreme Court of a State orTerritory.
848. Inits Report, the Council concluded that the role of a childrepresentative should be carried out by an appropriately trainedlawyer, rather than a child and family counsellor. TheCouncil noted that many elements of the childrepresentative’s role presume prior legal training andexperience in applying law and legal principle to a range ofscenarios.
Item 4 -Section 60C (table item 10)
849. Item4 repeals item 10 of the table at section 60C that provides anoutline of the provisions in Part VII of the Act. Part VII isthe part of the Act that deals with children. This itemreplaces item 10 of the table so that it only refers to therepresentation of the child’s interests in proceedings by anindependent children’s lawyer. This item also removesthe references to the determination of what is in a child’sbest interests, as these provisions have now been relocated toDivision 1 of the Act (Schedule 1, item 9) to give greater emphasisand visibility to those provisions.
Item 5 - Division 10 of PartVII
850. Item5 repeals and replaces the existing Division 10. ThisDivision now deals solely with the independent representation of achild’s interests. The existing provisions that relateto the best interests of children (Subdivision B, Division 10 ofthe Act) have now been relocated to Division 1, Part VII of the Act(Schedule 1, item 9) to give greater emphasis and visibility tothose provisions.
Section 68L- Court order for independent representation of child’sinterests
851. Section 68L provides the court with power to make an order for theappointment of an independent children’s lawyer to representa child’s interests in proceedings in which the child’sbest interest are the paramount, or a relevant,consideration.
852. Subsection 68L(1) explains that this section applies to proceedingsunder the Act in which the best interests of the child are, or thechild’s welfare is, the paramount or a relevantconsideration. This provision is in exactly the same terms assubsection68L(1) of the existing Act. The reason thatit is in this Bill is because the whole of Division 10 has beenrepealed.
853. Subsection 68L(2) states that a court may order that achild’s interests be independently represented by anindependent children’s lawyer if it appears that suchrepresentation is necessary in the proceedings. Under thissubsection, the court may also make such other orders as itconsiders necessary to secure the independent representation of thechild’s interests.
854. Thisprovision is similar to subsection 68L(2) of the existing Act, butchanges the terminology to ‘independent children’slawyer’ and clarifies that it is the child’s intereststhat will be represented (as explained below). The reasonthat it is in this Bill is because the whole of Division 10 hasbeen repealed.
855. Subsection 68L(2) states that a lawyer should represent achild’s ‘interests’, rather than represent thechild. In its Report, the Council recommended that childrepresentatives should act as independent advocates for the bestinterests of the child, rather than act on the instructions of thechild. The Council considered that the feature of assistingthe court while simultaneously allowing the child’s voice tobe heard is best fulfilled in this way. The Governmentconsiders that this is appropriate given the legislativerequirement for the court to make decisions that are in the bestinterests of the child.
856. Subsection 68L(3) provides that in proceedings for the return of achild, pursuant to the Hague Convention on the Civil Aspects ofInternational Child Abduction (theHague Convention), thecourt may only make an order that a child’s interests beindependently represented by a lawyer if there are exceptionalcirc*mstances to justify the court doing so. The court mustspecify in the order those exceptional circ*mstances.
857. Thisprovision is similar to subsection 68L(3) of the existing Act, butchanges the terminology to ‘independent children’slawyer’ and clarifies that it is the child’s intereststhat will be represented. The reason that it is in this Billis because the whole of Division 10 has been repealed.
858. Under the Hague Convention, generally a country is required to senda child abducted to its jurisdiction, back to the country ofhabitual residence of the child prior to the abduction from thatcountry. There should be no need, therefore, to inquire intothe best interests of the child in Australia. That would be amatter for the country of habitual residence of the child.
859. Subsection 68L(4) explains that a court may make an order for theindependent representation of a child’s interests by a lawyerin the proceedings on its own initiative or on the application ofthe child, an organisation concerned with the welfare of childrenor any other person.
860. Thisprovision is similar to subsection 68L(4) of the existing Act, butchanges the terminology to ‘independent children’slawyer’. The reason that it is in this Bill is becausethe whole of Division 10 has been repealed.
861. Newsubsection 68L(5) clarifies that the court may make an order underparagraph68L(2)(b) for the purpose of allowing the lawyer whois to represent the child’s interests to find out what thechild’s views are on the matters to which the proceedingsrelate. The purpose of this section is to clarify that theindependent children’s lawyer can seek the views of thechild, despite the requirement that the independentchildren’s lawyer come to their own conclusion on theavailable material about what is in the best interests of thechild. Subsection 68L(5) does not limit paragraph 68L(2)(b)and the court may make other orders under that paragraph as itconsiders appropriate.
862. Thenote following subsection 68L(5) provides guidance to readers byreferring them to section60CE. That section states thata child cannot be required to express his or her views in relationto any matter. However, except for exceptional circ*mstances,it is expected that independent children’s lawyers will havecontact with children to discuss their views.
863. Inaccordance with subsection 68L(6), subsection 68L(5) will not applywhere complying with that subsection would be inappropriate becauseof the child’s age or maturity or some other specialcirc*mstance. For example, although the child may have firmviews on which parent the child would like to live with, the childmay have special needs that are best served by living with theother parent.
Section 68LA- Role of independent children’s lawyer
864. Newsection 68LA sets out the role of the independent children’slawyer. In its Report, the Council expressed concerns aboutthe minimal direction and guidance concerning the role of the childrepresentative in the Act and recommended that this beaddressed.
When sectionapplies
865. Subsection 68LA(1) provides that the section will apply where anindependent children’s lawyer has been appointed inproceedings under the Act.
General natureof role of independent children’s lawyer
866. Subsection 68LA(2) provides direction on the general nature of therole of the independent children’s lawyer. Thesubsection states that an independent children’s lawyer mustform an independent view of what is in the best interests of thechild. The independent children’s lawyer must also actin relation to the proceedings in what the independentchildren’s lawyer believes to be in the best interests of thechild.
867. Inaccordance with the recommendation of the Council, the intention ofsuch a provision is to clarify that the independentchildren’s lawyer should act as an independent advocate forthe best interests of the child, rather than act on theinstructions of the child. The Government considers that thisis appropriate, given the legislative requirement for a court tomake a decision in the best interests of the child.
868. Subsection 68LA(3) states that if an independent children’slawyer is satisfied that a particular course of action is in thebest interests of the child, the lawyer must make a submission tothe court suggesting the adoption of that particular course ofaction. The intention of this provision is to provideguidance to the independent children’s lawyer in situationswhere what they consider to be in the best interests of the childdiffers from the views expressed by the child. For example,where a child wants to live with the mother, the independentchildren’s lawyer may consider that the child should residewith the father due to the mother’s illness orincapacity.
869. Inaddition to subsection 68LA(3), subsection 68LA(4) provides furtherconfirmation that an independent children’s lawyer is not thelegal representative of the child and is not obliged to act on thechild’s instructions in relation to the proceedings.The intention of this provision is to provide absolute clarity onthe precise role and obligations of the independentchildren’s lawyer.
Specificduties of independent children’s lawyers
870. Subsection 68LA(5) provides guidance to lawyers acting in the roleof the independent children’s lawyer and clarity to readersabout the specific duties of the role. The Council consideredthe basic elements of the role of the child representative as setdown by the Full Court of the Family Court in the case of PandP (1995) FLC 92-615( PandP ) should be incorporated into theAct. The elements are as follows:
a. Act in an independent and unfetteredway in the interests of the child.
b. Act impartially, but if thoughtappropriate, make submissions suggesting the adoption by the courtof a particular course of action if he or she considers that theadoption of such a course is in the best interests of thechild.
c. Inform the court by proper means ofthe children’s wishes in relation to any matter in theproceedings. In this regard the separate representative isnot bound to make submissions on the instructions of the child orotherwise but is bound to bring the child’s expressed viewsto the attention of the court.
d. Arrange for the collation of expertevidence and otherwise ensure that all evidence relevant to thewelfare of the child is before the court.
e. Test by cross-examination whereappropriate the evidence of the parties and theirwitnesses.
f. Ensure that the views and attitudesbrought to bear on the issues before the court are drawn from theevidence and not from a personal view or opinion of thecase.
g. Minimise the trauma to the childassociated with the proceedings.
h. Facilitate an agreed resolution tothe proceedings.
871. TheCouncil recommended that the P and P elements be included inthe legislation to address the minimal direction and guidanceconcerning the role of the child representative currently given inthe Act.
872. Paragraph 68LA(5)(a) is based upon the direction in P and P that child representatives should act in an independent andunfettered way in the interests of the child. The provisionstates that an independent children’s lawyer must actimpartially in dealings with the parties to the proceedings.This provision acknowledges that an important part of the role ofthe independent children’s lawyer is the function playedoutside of the courtroom. The independent children’slawyer may be working with all the parties to the proceedings tofind creative solutions to the issues in dispute.
873. Paragraph 68LA(5)(b) directs that an independent children’slawyer must ensure that any views expressed by the child inrelation to the matters to which the proceedings relate are fullyput before the court. This is consistent with the requirementof the court to consider the views of the child in making parentingorders that are in the best interests of the child. Thisagain confirms that the independent children’s lawyer is notbound to make submissions on the instructions of the child orotherwise, but is bound to bring the child’s expressed viewsto the attention of the court.
874. Itis appropriate that the independent children’s lawyer hasflexibility to sensitively manage the views of children andpresentation of evidence. In the circ*mstances of aparticular case, it may be most appropriate for the independentchildren’s lawyers to work with court mediators and expertsto get evidence about the best arrangements for the child beforethe court, rather than inform the court directly of the views ofthe child. In other cases, particularly those involving olderchildren, it may be more appropriate for the child to present hisor her views directly to the court. It is important to note thataccording to section 60CE, a person cannot require a child toexpress his or her views in relation to any matter.
875. Inproceedings involving a report or other document that relates tothe child, subparagraph 68LA(5)(c)(i) directs the independentchildren’s lawyer to analyse the report or document toidentify those matters that the independent children’s lawyerconsiders to be the most significant for determining what is in thebest interests of the child. Under subparagraph68LA(5)(c)(ii), the independent children’s lawyer must ensurethat those matters are properly drawn to the court’sattention.
876. Paragraph 68LA(5)(d) states that an independent children’slawyer should also endeavour to minimise the trauma to the childassociated with the proceedings. This is based upon thesimilar factor in P and P . Clearly, the best interestsof the child are served by reducing the stresses that suchproceedings may inflict on a child. This provision is alsoconsistent with other measures contained in Schedule 3 of this Billto introduce a ‘less adversarial’ process forchild-related proceedings.
877. Paragraph 68LA(5)(e) directs that an independent children’slawyer must facilitate an agreed resolution of matters at issue inthe proceedings to the extent to which doing so is in the bestinterests of the child. Again, this is consistent with Pand P . The Council noted that child representatives havea role to play in facilitating dispute resolution, taking intoconsideration their view of the best interests of the child.
Disclosure ofinformation
878. Inaccordance with the Council’s recommendation, new subsections68LA(6), (7) and (8) provide clarification on the level ofconfidentiality that exists in the relationship between theindependent children’s lawyer and the child.
879. Subsection 68LA(6) provides that the independent children’slawyer is not under an obligation to disclose to the court and,importantly, cannot be required to disclose to the court anyinformation that the child communicates to the independentchildren’s lawyer. This is in accordance with theCouncil’s recommendation that the child representative cannotbe required, by any party or the court, to disclose informationcommunicated to the child representative by the child. Thisis subject to subsection68LA(7).
880. Theintention of these provisions is to clarify the confidentialrelationship between the independent children’s lawyer andthe child and to enable a professional relationship to beestablished between them. Client legal privilege cannotoperate for an independent children’s lawyer who is acting ina best interests capacity, as the independent children’slawyer has an overriding duty to the court to present all relevantevidence and make submissions in the child’s bestinterests. This provision will protect an independentchildren’s lawyer from being required by any party or courtto disclose information communicated to the independentchildren’s lawyer by the child.
881. Subsection 68LA(7) provides that the independent children’slawyer may disclose to the court any information that the childcommunicates to them, if the independent children’s lawyerconsiders the disclosure to be in the best interests of thechild.
882. Subsection 68LA(8) states that the independent children’slawyer may disclose information to the court if the independentchildren’s lawyer considers it to be in the child’sbest interests, even if this disclosure is made against the wishesof the child. This provision further confirms that theindependent children’s lawyer is acting as a best interestsadvocate, and not on the instructions of the child. It alsobalances the need for the independent children’s lawyer toestablish a professional relationship with the child whileoperating in the child’s best interests.
883. Section 68M gives the court power to order a person to make a childavailable for examination for the purposes of preparing areport. This section is in similar terms to section 68M inthe existing Act, but changes the terminology to ‘independentchildren’s lawyer’. The reason that it is in thisBill is because the whole of Division10 has beenrepealed.
884. Subsection 68M(1) explains that this section applies in proceedingsunder this Act if an independent children’s lawyer has beenappointed to represent a child’s interests.
885. Subsection 68M(2) provides that the court may, on the applicationby the independent children’s lawyer, order a person to makethe child available as specified in the order, for an examinationto be made for the purposes of preparing a report about thechild. This report is for use by the independentchildren’s lawyer in connection with the proceedings.
886. Subsection 68M(3) provides that the order that a child be madeavailable for examination can be directed to a parent of the child,a person who has parental responsibility for the child or with whomthe child may live, spend time or communicate with under aparenting order. This provision reflects the terminologychanges contained in Schedule 8 of this Bill to remove thereferences to ‘residence’ and‘contact’.
Item 6 - Subparagraph 69W(2)(b)(ii)
887. Subparagraph 69W(2)(b)(ii) details the circ*mstances in whichparentage testing orders may be made. This item substitutesthe reference to ‘a person representing the child’ with‘an independent children’s lawyer representing thechild’s interests’. This is in accordance withthe removal of references to ‘child representative’ initem1 of this Schedule.
Item 7 -Subparagraph 69ZC(3)(b)(ii)
888. Subparagraph 69ZC(3)(b)(ii) details the circ*mstances in which aparentage testing report may be received in evidence. Thisitem substitutes the reference to ‘a person representing therelevant child’ with ‘an independent children’slawyer representing the relevant child’sinterests’. This is in accordance with the removal ofreferences to ‘child representative’ in item 1 of thisSchedule.
Item 8 -Subsection 117(3)
889. Subsection 117(3) gives the court power to make an order for thepayment of the child representative’s costs. This itemreplace the reference to ‘a child representative’ atthe beginning of the provision with one to ‘an independentchildren’s lawyer for a child’. This is inaccordance with the removal of references to ‘childrepresentative’ in item 1 of this Schedule.
Item 9 - Subsection 117(3)
890. Subsection 117(3) gives the court power to make an order for thepayment of the child representative’s costs. This itemrepalces the reference to ‘the child representative’ atthe end of the provision with one to ‘the independentchildren’s lawyer’. This is in accordance withthe removal of references to ‘child representative’ initem 1 of this Schedule.
Item 10- Subsection 117(4)
891. Subsection 117(4) details the circ*mstances where a court must notorder payment of a child representative’s costs. Thisitem replaces the reference to ‘a child representative’at the beginning of the provision with one to ‘an independentchildren’s lawyer for a child’. This is inaccordance with the removal of references to ‘childrepresentative’ in item 1 of this Schedule.
Item 11- Subsection 117(4)
892. Subsection 117(4) details the circ*mstances where a court must notorder payment of a child representative’s costs. Thisitem replaces the reference to ‘the childrepresentative’ at the end of the provision with one to‘the independent children’s lawyer’ (whereveroccurring). This is in accordance with the removal ofreferences to ‘child representative’ in item 1 of thisSchedule.
Item 12 -Subsection 117(5)
893. Subsection 117(5) states that the funding of the childrepresentative must be disregarded in the court’sconsideration of a costs order. This item replaces thereference to ‘a child representative’ at the beginningof the provision with one to ‘an
independent children’slawyer’. This is in accordance with the removal ofreferences to ‘child representative’ in item 1 of thisSchedule.
Item 13- Subsection 117(5)
894. Subsection 117(5) states that the funding of the childrepresentative must be disregarded in the court’sconsideration of a costs order. This item replaces thereference to ‘the child representative’, where itappears later on in the provision, with one to ‘theindependent children’s lawyer’. This is inaccordance with the removal of references to ‘childrepresentative’ in item 1 of this Schedule.
Part 2- Application of amendments and saving ofappointments
Item 14 - Definitions
895. Item14 specifies that in this Part ‘commencement’ means thecommencement of Schedule 5, ‘old Act’ means the Act asin force immediately before that commencement (the existing Act),and ‘new Act’ means the Act as in force after thatcommencement (the amended Act).
Item 15- Application of amendments
896. Item15 states that the amendments made by Schedule 5 will apply toproceedings initiated under Part VII on or after the day on whichthat Schedule commences.
Item 16- Saving of appointments
897. Paragraph 1 states that this item will apply if a court has made anorder under section68L for the child to be separatelyrepresented and, immediately before commencement, the proceedingsin which the order was made have not been concluded.
898. Paragraph 2 states that a ‘child representative’ whowas appointed under section68L of the current Act, or‘old Act’, is taken to be appointed as the‘independent children’s lawyer’ under section 68Lof the amended Act, the ‘new Act’. The purpose ofthis paragraph is to ensure that a separate representativeappointed under section 68L of the existing Act, will be deemed tobe an independent children’s lawyer for the amendedAct. A further order for the appointment of an independentchildren’s lawyer will not be required.
899. Paragraph 3 states that an order under section 68L of the old Actfor separate representation of the child is taken to be an orderunder section 68L of the new Act for independent representation ofthe child’s interests. This will ensure that any recentorders made by the court appointing a separate representative willapply. A further order for an independent children’slawyer will not be required.
SCHEDULE 6 - FAMILY VIOLENCE
900. Schedule 6 repeals and replaces the existing Division 11.This Division deals with the relationship between orders made underthe Family Law Act 1975 (the Act) that provide for a childto spend time with a person, and family violence orders made undera law of a State or Territory to protect a person from familyviolence.
901. Theamendments seek to make Division 11 clearer, more concise andeasier to understand by the people who use and implement it, inparticular, for State and Territory Magistrates making familyviolence orders.
902. Theamendments implement recommendations to simplify and improve theoperation of the provisions in Division 11, made by the Family LawCouncil in its letter of advice to the Attorney-General dated 16November 2004.
903. Theamendments also remove references to the term ‘contact’from the Division to ensure the Division’s terminology isconsistent with the new terminology introduced in Schedule 8 ofthis Act.
Item 1 -Division 11 of Part VII
904. Item1 repeals and replaces the existing Division 11. ThisDivision deals with the relationship between orders made under theAct that provide for a child to spend time with a person, andfamily violence orders made under a law of a State or Territory toprotect a person from family violence.
Section 68N- Purposes of this Division
905. Section 68N clarifies the purposes of Division 11. Thepurposes are to:
· resolve inconsistencies between State and Territory family violenceorders and orders made under the Act that provide for a child tospend time with a person
· ensure that orders made under the Act providing for a child tospend time with a person do not expose people to family violence,and
· achieve the objects and principles set out in section 60B.These principles include ensuring that a child benefits from ameaningful relationship with both parents and ensuring that thechild is protected from harm.
906. Division 11 attempts to achieve these purposes in two ways.Firstly, where a court exercising jurisdiction under the Act makesan order providing for a child to spend time with a person and thisorder is inconsistent with an existing family violence order,section 68P places obligations on the court to explain to theparties affected (or arrange for someone else to explain to them),the effect and consequences of the order and how it is to becomplied with.
907. Secondly, when an application for a family violence order is madein a State or Territory court, Division 11 gives that court thepower to amend an existing family law order providing for a childto spend time with a person, if this is necessary to give effect tothe family violence order. Giving this power to State andTerritory courts is necessary to protect people, particularlychildren, where a family law order may expose them to violence orrisk of violence. It also ensures that this is done withappropriate consideration of the objects and principles in Part VIIof the Act.
Section 68P -Obligations of court making an order or granting an injunctionunder this Act that is inconsistent with an existing familyviolence order
908. Section 68P sets out what a court exercising jurisdiction under theAct must do when there is an existing State or Territory familyviolence order in place and the court makes an order (or grants aninjunction) that is inconsistent with it. This could arise,for example, where the court exercising family law jurisdictionmakes an order that a child spend time with a person even though anearlier family violence order might prevent this occurring.
909. Subsection 68P(1) sets out when the section applies. Itprovides that the section applies if a court exercising family lawjurisdiction makes certain orders or injunctions and these ordersor injunctions are inconsistent with an existing State andTerritory family violence order. The relevant orders andinjunctions are described in subparagraphs (1)(a)(i), (ii) and(iii) of section 68P. They include a parenting order thatprovides for a child to spend time with a person or authorises aperson to spend time with a child, a recovery order (as defined insection 67Q), or an injunction under sections 68B or 114.Section 68B sets out the types of injunctions a court can grant forthe welfare of a child. Section 114 sets out the types ofinjunctions a court can grant in proceedings between parties to amarriage in circ*mstances arising out of the marital relationship,which include an injunction for the personal protection of one ofthe parties.
910. Bylisting the orders to which section 68R applies, subsection 68P(1)removes the need for the existing definition of ‘section 68Pcontact order’. This is consistent with the changes inSchedule 5 which remove references to the terms‘residence’ and ‘contact’ from theAct. It will simplify the application of Division 11.
911. Subsection 68P(2) sets out what the court’s obligations arewhen it makes an order or injunction which is inconsistent with anexisting family violence order. The obligations only apply tothe extent to which the order or injunction provides for the childto spend time with a person or authorises a person to spend timewith the child. The court is required to:
· state in thefamily law order or injunction that it is inconsistent with anexisting State or Territory family violence order (paragraph(a))
· give a detailedexplanation of how the contact that the order provides for is totake place (paragraph(b)), and
· explain the orderor injunction to the applicant and respondent, the person againstwhom the family violence order is directed (if not the applicant orrespondent) 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 areinformed about it and understand its implications.
912. Thecourt is required to include in the explanation:
· the purpose of the order orinjunction
· the obligations the order orinjunction creates (including how the contact that it provides foris to take place)
· the consequences if a person failsto comply with the order or injunction
· its reasons for making an order orgranting an injunction that is inconsistent with a family violenceorder, and
· the circ*mstances in which a personmay apply to vary or revoke the order or injunction (paragraph68P(3)(d)).
913. Theintention is to both ensure that the court has to consider theeffect of making an order that is inconsistent with an existingfamily violence order and explain to the parties how the new orderwill work. This will ensure that all affected people are madeaware of the new order and that the order contains appropriatesafeguards.
914. Thecourt does not necessarily have to provide the explanationitself. It can arrange for another person, such as a familyconsultant, to do so.
915. Subsection 68P(3) provides that where the court exercising familylaw jurisdiction makes an order or injunction that is inconsistentwith an existing family violence order, it must give a copy of theorder to each of the persons listed in paragraphs (a) to (f).This ensures that all people affected by the order or involved inthe enforcement of the order have a copy of it and are aware ofwhat has happened. This should resolve confusion that mayotherwise occur about the effect of the other inconsistentorders. The court must provide the copies as soon as it ispracticable and no later than 14 days after making the order orgranting the injunction.
916. Subsection 68P(4) provides that the validity of the order orinjunction is not affected by a failure to comply with thesection. This will prevent technical defects after the courthas already considered the matter. This is appropriate giventhe high cost of having a matter heard.
Section 68Q - Relationship of order or injunction made underthis Act with existing inconsistent family violence order
917. Section 68Q is an important provision which clarifies therelationship between family law orders which provide for a child tospend time with a person and State or Territory family violenceorders.
918. Subsection 68Q(1) provides that where an order which provides for achild to spend time with a person is inconsistent with a State orTerritory family violence order, the order which provides for achild to spend time with a person prevails and the family violenceorder is invalid to the extent of the inconsistency.
919. 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
mayapply to the court for a declaration that the order or injunctionis inconsistent with the family violence order.
920. Under subsection 68Q(3), the court must hear and determine theapplication and make such declarations as it considersappropriate. The making by the court of adeclaration would make it clear that a later family law order ismeant to be inconsistent with the earlier family violenceorder.
Section 68R - Power of court making a family violence order torevive, vary, discharge or suspend an existing order, injunction orarrangement under this Act
Power
921. Subsection 68R(1) gives a court of a State or Territory dealingwith an application for a family violence order, the power torevive, vary, discharge or suspend family law orders, injunctionsand arrangements that provide for a child to spend time with aperson. The orders, injunctions and arrangements aredescribed in paragraphs 68R(1)(a) to (d).
922. Thecourt may revive, vary, discharge or suspend these orders,injunctions and arrangements on its own initiative or on theapplication by any person. This provides protection forchildren and their parents where a family law order may expose themto violence or risk of violence.
Limits onpower
923. Subsections 68R(3) and (4) set out the limits on the courts powersunder this section. Paragraph 68R(3)(a) provides that thecourt 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 theproceedings (whether or not by interim order).
924. Paragraph 68R(3)(b) provides that the court must not revive, vary,discharge or suspend an order or injunction mentioned in paragraphs68R(1)(a), (b) and (c) unless the court has material before it thatwas not before the court that made the order or injunction.The intention is to prevent parties circumventing family law ordersby applying to a State or Territory court where there is no newevidence of violence or abuse.
925. Under subsection 68R(4), the court must not exercise its powerunder subsection68R(1) to discharge an order, injunction orarrangement in proceedings to make an interim family violence orderor an interim variation of a family violence order. It wouldbe inappropriate for the court to discharge a family law order,injunction or arrangement on the basis of limited evidenceavailable at an interim hearing.
Relevantconsiderations
926. Subsection 68R(5) clarifies what a State or Territory court makinga family violence order should relevantly consider when exercisingits power to revive, vary, discharge or suspend a family law order,injunction or arrangement (as set out in subsection 68R(1)).
927. Paragraph 68R(5)(a) provides that the court must have regard to thepurposes of the Division (as set out in section 68N).
928. Paragraph 68R(5)(b) provides that the court must also have regardto whether contact with both parents is in the best interests ofthe child.
929. Paragraph 68R(5)(c) provides that before varying, discharging orsuspending an order or injunction (as set out in paragraphs68R(1)(a),(b) and (c)) that was inconsistent with an existingfamily violence order when it was made or granted, the court mustbe satisfied that it is appropriate to do so because a person hasbeen exposed, or is likely to be exposed, to family violence as aresult of the operation of that order or injunction. This isto prevent orders or injunctions obtained under the Family Law Actfrom being varied, discharged or suspended, unless there isevidence that the order or injunction has exposed, or is likely toexpose, a person to the risk of family violence.
Registration of revival, variation, discharge or suspension oforders and other arrangements
930. Subsection 68R(6) provides for a regulation making power for theregistration of court orders reviving, varying, discharging orsuspending a family law order, injunction or arrangement.Failure to comply with a registration requirement under regulationsthat are made does not affect the validity of the court’sdecision.
Section 68S - Application of Act and Rules when exercisingsection 68R power
931. Section 68S clarifies that some provisions of the Act and Rules maynot apply when a State or Territory court is exercising its powerunder section 68R to revive, vary, discharge or suspend an order,injunction or arrangement under the Act.
932. Subsection 68S(1) sets out a list of provisions that do notapply. Paragraph68S(1)(f) contains a provision allowingfor regulations to specify that other provisions do not apply.
933. Paragaph 68S(2)(a) provides that if a State or Territory court isexercising its power under section 68R in proceedings to make aninterim family violence order (or interim variation of a familyviolence order), the court has a discretion about whether to applyparagraph 60CC(3)(a). Paragraph 60CC(3)(a) allows the courtto take into consideration any views expressed by the child whendetermining the child’s best interests. Paragaph68S(2)(b) provides for a regulation making power for otherprovisions of the Act or applicable Rules of Court to be specifiednot to apply in State or Territory court proceedings of thiskind.
934. Subsection 68S(3) provides a power for a court exercising its powerunder section68R to dispense with any otherwise applicableRules of Court.
Section 68T - Special provisions relating to proceedings to makean interim (or interim variation of) family violence order
935. Section 68T makes special provision for proceedings involvinginterim family violence orders or interim variations of familyviolence orders. Subsection 68T(1) provides that in suchproceedings, 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 theinterim order stops being in force, or 21 days after the interimorder was made (whichever is earlier). No appeal lies inrelation to the revival, variation or suspension (subsection68T(2)).
936. Theintention of this provision is to allow a State or Territory courtmaking interim family violence orders to revive, vary or suspendthe operation of family law orders, such as parenting orders aboutthe time a child is to spend with a person, for a period of threeweeks. This three week period will provide an opportunity foran application to be made to amend the family law orders.This provision balances the competing interests of providingimmediate protection from violence and ensuring that any changes tofamily law orders are dealt with in a short period and with dueprocess.
Part 2 - Application of amendmentsand savings
Item 2 - Definitions
937. Thisitem sets out the definitions of terms used in Part 2, which dealswith the application of the provisions in the Schedule and savingthe regulations made under the existing Act.
Item 3 -Application of amendments
938. Thisitem clarifies that the amendments made by Part 1 apply to ordersmade after the provisions of the Schedule commence, whether or notthe application for the order was made before or after thattime. This is appropriate as these provisions do not changethe substance of this Division by redrafting them in a clearer andmore accessible way.
Item 4 - Saving ofregulations
939. Thisitem provides for the saving of regulations made under the existingAct. It provides that even where a provision of the existingAct (specified in the table) has been repealed, regulations thatwere made for the purposes of that provision, and were in forceimmediately before the commencement of this Schedule, continue tohave effect as if they had been made for the purposes of thecorresponding provision of the new Act (also specified in thetable).
SCHEDULE 7 - JURISDICTIONOF COURTS
940. Schedule 7 repeals the property limit provision contained in thethe Act that prevents the Federal Magistrates Court (FMC) fromexercising jurisdiction in property proceedings where the value ofthe property exceeds $700,000 unless both partiesconsent.
941. TheFMC currently shares jurisdiction for family law matters with theFamily Court of Australia (FCA). The FMC was established inorder to deal with simpler and less complexmatters.
942. Aspart of the package of reforms to the family law system, the FCAand the FMC are developing a combined registry for family lawmatters. The aim of the combined registry is to make the courtsystem easier to navigate by providing a single point of entry tothe family court system. The development of a combinedregistry addresses issues raised in the Every picture tells astory report and the Australian National Audit Office report onclient service in the FCA and FMC.
943. Animportant component of the combined registry is the ability torefer matters to the most appropriate court (through the use oftransfer mechanisms such as those set out in section 33B of the Actand section 39 of the Federal Magistrates Act 1999 ).The $700,000 property limit creates unnecessary rigidity in thesystem. These amendments will enable property matters to bemore effectively channelled to the most appropriate court andprovide opportunities for the courts to maximise their use ofresources.
Item 1: Section 45A
944. Thisitem repeals Section 45A. Currently, section 45A providesthat the FMC must transfer proceedings to the FCA if the propertyvalue exceeds $300,000, or if another amount is specified in theregulations - that other amount. Pursuant tosub-regulation 12AC(2) of the Family Law Regulations 1984 theamount of $700,000 is specified for the purposes of Section 45A ofthe Act.
945. TheFMC is only required to transfer proceedings where the propertyvalue exceeds $700,000 to the FCA if the respondent seeks adifferent order to that of the applicant and both parties do notconsent to the FMC hearing and determining theproceedings.
946. Byrepealing section 45A the FMC will be able to exercise jurisdictionfor all property proceedings regardless of the value of theproperty or the consent of the parties.
Item 2: Application of Amendment
947. Thisitem provides that the amendment made by item 1 applies toproceedings instituted before or after the commencement of thatitem. This provides the FCA with the flexibility to transferpending property proceedings to the FMC where the FMC is the moreappropriate court to deal with the matter.
SCHEDULE 8 - REMOVAL OF REFERENCES TO RESIDENCE ANDCONTACT
948. Schedule 8 changes the terminology of the Act to remove referencesto the terms ‘residence’, ‘contact’ and‘specific issues orders’. Changes to the Act in1995 adopted the terms ‘residence’ and‘contact’ instead of ‘custody’ and‘access’ in order to eliminate any sense of ownershipof children. However, the intended change of culture has notbeen achieved and the FCAC Report recommended that more familyfriendly terms such as ‘parenting time’ be used.
949. Inthe majority of cases the amendments replace references to‘residence’ with ‘lives with’ andreferences to ‘contact’ with ‘spends timewith’ and ‘communicates with’. Theamendments also remove the current categories of residence, contactand specific issues orders from parenting orders and refer simplyto parenting orders. Child maintenance orders are retained asa separate category of parenting orders. This is due to thedirect link between child maintenance orders and orders madepursuant to the child support scheme.
950. Thechanges will focus the court and the parties on parenting as thecentral issue. In particular, this will emphasise the needfor parents to think more broadly about what parenting means andthe impact of the proceedings upon the child.
951. These amendments substantially implement recommendation 4 of theFCAC Report. They require consequential amendments to theterminology that is used in the Australian Citizenship Act1948 , the Australian Citizenship Act2005 , the Australian Passports Act 2005 , the Child Support(Assessment) Act1989 and the Migration Act1958.
Part 1- Amendments
Australian Citizenship Act 1948
Item 1- Paragraphs 5(2)(b) and (c)
952. Item1 amends the definition of ‘responsible parent’ insection 5 of the Australian Citizenship Act 1948 to removethe references to residence orders and specific issuesorders. These references are replaced with references toparenting orders under which a child is to live with a person andparenting orders under which a person has parental responsibilityfor a child’s long-term or day-to-day care, welfare anddevelopment. This amendment ensures that the more genericdescription of ‘parenting orders’ operates.
AustralianCitizenship Act 2005
Item 2 - Paragraphs 6(1)(b) and(c)
953. Item2 amends the definition of ‘responsible parent’ insection 6 of the Australian Citizenship Act 2005 to removethe references to residence orders and specific issuesorders. These references are replaced with references toparenting orders under which a child is to live with a person andparenting orders under which a person has parental responsibilityfor a child’s long-term or day-to-day care, welfare anddevelopment. This amendment ensures that the more genericdescription of ‘parenting orders’operates.
Australian Passports Act2005
Item 3 - Paragraphs 11(5)(b) and(c)
954. Item3 repeals paragraphs 11(5)(b) and (c) of the AustralianPassports Act2005 which define having parentalresponsibility for a child by reference to a ‘residenceorder’, ‘contact order’, or ‘specificissues order’. These references are replaced byreferences to parenting orders under which a child lives or spendstime with a person and parenting orders under which a person hasresponsibility for a child’s long-term or day-to-day care,welfare and development. This amendment ensures that the moregeneric description of ‘parenting orders’ operates.
Item 4 - Subsection 11(6)
955. Item4 repeals subsection 11(6) of the Australian Passports Act2005 which defines ‘contact order’,‘residence order’ and ‘specific issuesorder’ by reference to the Act. This terminology is nolonger used in the Act.
Child Support (Assessment) Act1989
956. These provisions change the terminology in the Child Support(Assessment) Act 1989 (Child Support Act) to removereferences to the term ‘contact’ as a consequence ofthe 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 thesubstance of the amended provisions.
Item 5 - Section 5
957. Item5 introduces the term ‘major care’ in section 5 theChild Support Act, which is the definition section of thatAct. The term replaces the term ‘major contact’which is repealed by item 6. This amendment updates theterminology to remove the reference to contact.
Item 6- Section 5 (definition of major contact )
958. Item6 repeals the definition of ‘major contact’ in section5 of the Child Support Act, which is the definition section of thatAct. The term is replaced by ‘major care’ whichis inserted by item 5. This amendment updates the terminologyto remove the reference to contact.
Item 7 - Section 5 (subparagraph (a)(ii) of the definitionof relevant dependent child )
959. Item7 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 definitionsection of that Act, with the term ‘major care’ whichis inserted byitem 5. This amendment updates the terminologyto remove the reference to contact.
Item 8- Section 5
960. Item8 introduces the term ‘substantial care’ in section 5of the Child Support Act, which is the definition section of thatAct. The term replaces the term ‘substantialcontact’ which is repealed by item 9. This amendmentupdates the terminology to remove the reference tocontact.
Item 9- Section 5 (definition of substantialcontact )
961. Item9 repeals the definition of ‘substantial contact’ insection 5 of the Child Support Act, which is the definition sectionof that Act. The term is replaced by ‘substantialcare’ inserted by item 8. This amendment updates theterminology to remove the reference to contact.
Item 10- Paragraph 7B(1)(b)
962. Item10 changes the phrase ‘contact with’ to ‘careof’ in paragraph 7B(1)(b) of the Child Support Act.Section 7B of the Child Support Act sets out the meaning ofeligible carer. This amendment updates the terminology toremove the reference to contact.
Item 11 - Paragraph 7B(1)(d)
963. Item11 changes the phrase ‘contact with’ to ‘careof’ in paragraph7B(1)(d) of the Child SupportAct. Section 7B of the Child Support Act sets out the meaningof eligible carer. This amendment updates the terminology toremove the reference to contact.
Item 12 - Paragraph 7B(2)(a)
964. Item12 changes the phrase ‘provides care for a child, shares careof a child or has contact with’ to ‘cares for’ inparagraph 7B(2)(a) of the Child Support Act. Section 7B ofthe Child Support Act sets out the meaning of eligible carer.This amendment updates the terminology to remove the reference tocontact.
Item 13- Paragraph 7B(2)(c)
965. Item13 changes the phrase ‘providing or sharing such care, orhaving such contact’ to ‘caring for the child’ inparagraph 7B(2)(c) of the Child Support Act. Section 7B ofthe Child Support Act sets out the meaning of eligible carer.This amendment updates the terminology to remove the reference tocontact.
Item 14 - Subsection 7B(2)
966. Item14 changes the phrase ‘provide care for, share such care orhaving such contact’ to ‘care for the child’ insubsection 7B(2). Section 7B of the Child Support Act setsout the meaning of eligible carer. This amendment updates theterminology to remove the reference to contact.
Item 15 - Subsection 7B(3)
967. Item15 changes the phrase ‘provide care for, share care of orhave contact with’ to ‘care for’ in subsection7B(3). Section 7B of the Child Support Act sets out themeaning of eligible carer. This amendment updates theterminology to remove the reference to contact.
Item 16- Subparagraph 8(3)(b)(ii)
968. Item16 changes the phrase ‘contact with’ to ‘careof’ in subparagraph8(3)(b)(ii) of the Child SupportAct. Section 8 defines major and substantial care of achild. This amendment updates the terminology to remove thereference to contact.
Item 17- Paragraph 8(3)(c)
969. Item17 changes the phrase ‘contact with’ to ‘careof’ in paragraph8(3)(c) of the Child Support Act.Section 8 defines major and substantial care of a child. Thisamendment updates the terminology to remove the reference tocontact.
Item 18- Paragraph 8(3)(d)
970. Item18 changes the phrase ‘contact with’ to ‘careof’ in paragraph8(3)(d) of the Child Support Act.Section 8 defines major and substantial care of a child. Thisamendment updates the terminology to remove the reference tocontact.
Item 19- Paragraph 8A(1)(a)
971. Item19 changes the phrase ‘the contact between a child and’to ‘the time a child is to spend with’ in paragraph8A(1)(a) of the Child Support Act. Section 8A modifies themeaning of care of a child where there has been a contravention ofa court order. This amendment updates the terminology toremove the reference to contact.
Item 20- Paragraph 8A(1)(d)
972. Item20 changes the wording of paragraph 8A(1)(d) of the Child SupportAct. Section 8A modifies the meaning of care of a child where therehas been a contravention of a court order. This amendment isfor clarification only and does not change the substance of theamended provision.
Item 21- Paragraphs 8A(2)(a) and (b)
973. Item21 changes the wording of paragraphs 8A(2)(a) and (b) of the ChildSupport Act to be consistent with the changes toparagraph8A(1)(d). Section8A modifies the meaningof care of a child where there has been a contravention of a courtorder. This amendment is for clarification only and does notchange the substance of the amended provision.
Item 22- Subsection 8A(4)
974. Item22 changes the phrase ‘contact with’ to ‘careof’ in subsection8A(4) of the Child Support Act.Section8A modifies the meaning of care of a child where therehas been a contravention of a court order. This amendmentupdates the terminology to remove the reference tocontact.
Item 23- Subsection 8A(5)
975. Item23 changes the phrase ‘contact with’ to ‘careof’ in subsection8A(5) of the Child Support Act.Section8A modifies the meaning of care of a child where therehas been a contravention of a court order. This amendmentupdates the terminology to remove the reference tocontact.
Item 24- Subsection 8A(6)
976. Item24 changes the phrase ‘contact with’ to ‘careof’ in subsection8A(6) of the Child Support Act.Section8A modifies the meaning of care of a child where therehas been a contravention of a court order. This amendmentupdates the terminology to remove the reference tocontact.
Item 25- Paragraph 48(1)(da)
977. Item25 changes the phrase ‘with whom the parent has substantialcontact’ to ‘of whom the parent has substantialcare’ in paragraph48(1)(da) of the Child SupportAct. Section48 sets out how the basic formula isapplied where both parents share the care of their child orchildren. This amendment updates the terminology to removethe reference to contact.
Item 26 - Paragraph 48(1)(e)
978. Item26 removes the terms ‘major contact’ and‘substantial contact’ and replaces them with‘major care’ and ‘substantial care’ inparagraph48(1)(e) of the Child Support Act.Section48 sets out how the basic formula is applied whereboth parents share the care of their child or children. Thisamendment updates the terminology to remove the reference tocontact.
Item 27 - Paragraph 54(1)(b)(definition of number of children in carer’scare )
979. Item27 removes the terms ‘major contact’ and‘substantial contact’ and replaces them with‘major care’ and ‘substantial care’ inparagraph54(1)(b) of the Child Support Act.Section54 sets out how the basic formula is applied where aparent is liable in relation to two or more carers. Thisamendment updates the terminology to remove the reference tocontact.
Item 28 - Section 54 (example2)
980. Item28 changes the phrase ‘substantial contact’ to‘substantial care’ in example 2 in section54 ofthe Child Support Act. Section54 sets out how the basicformula is applied where a parent is liable in relation to two ormore carers. This amendment updates the terminology to removethe reference to contact.
Item 29 - Paragraph 54A(1)(a)
981. Item29 removes the phrase ‘and contact’ inparagraph54A(1)(a) of the Child Support Act. Section54A describes the cases in which Subdivision H of that Actapplies. This amendment updates the terminology to remove thereference to contact.
Item 30 - Subparagraph54A(1)(b)(ii)
982. Item30 changes the phrase ‘contact with’ to ‘careof’ in subparagraph54A(1)(b)(ii) of the Child SupportAct. Section54A describes the cases in whichSubdivision H of that Act applies. This amendment updates theterminology to remove the reference to contact.
Item 31- Paragraph 54B(1)(e)
983. Item31 changes the phrase ‘with whom the parent has substantialcontact’ to ‘of whom the parent has substantialcare’ in paragraph54B(1)(e) of the Child SupportAct. Section 54B of the Child Support Act sets out how thebasic formula is applied where there has been a contravention of acourt order. This amendment updates the terminology to removethe reference to contact.
Item 32- Subparagraph 54B(1)(f)(i)
984. Item32 changes the phrase ‘with whom the carer has majorcontact’ to ‘of whom the carer has major care’ insubparagraph54B(1)(f)(i) of the Child Support Act.Section 54B sets out how the basic formula is applied where therehas been a contravention of a court order. This amendmentupdates the terminology to remove the reference tocontact.
Item 33- Subparagraph 54B(1)(f)(ii)
985. Item33 changes the phrase ‘with whom the carer has substantialcontact’ to ‘of whom the carer has substantialcare’ in subparagraph54B(1)(f)(ii) of the Child SupportAct. Section54B sets out how the basic formula isapplied where there has been a contravention of a courtorder. This amendment updates the terminology to remove thereference to contact.
Item 34- Paragraph 98C(2)(b)
986. Item34 replaces the reference in paragraph98C(2)(b) to‘sub-sub-paragraph117(2)(b)(i)(C)’ with areference to ‘subparagraph117(2)(b)(ib)’.Section98C sets out the matters as to which a Registrar mustbe satisfied before making determination under the Child SupportAct. This is a consequential amendment due to the changesintroduced by item 35 of this Schedule, below.
Item 35- Subparagraph 117(2)(a)(iv)
987. Item35 repeals and replaces subparagraph117(2)(a)(iv) of theChild Support Act which provides that a court may depart from theformula assessment prescribed in the Act, where a parent has highcosts enabling the parent to have contact with a child. Thisitem substitutes the word ‘contact’ with ‘carefor’. This amendment updates the terminology to removethe reference to contact.
988. Thecosts of a parent caring for the child are intended to be includedin the court’s consideration. This can include travel,telephone costs and accommodating the child during periods ofcare. These reasons are not intended to be limited and couldpossibly include legal costs of seeking orders to enable a parentto maintain their relationship with the child. However, thisis not intended to apply to costs incurred when seeking an order asto where the child is to live.
Item 36- Subparagraph 117(2)(b)(i)
989. Item36 repeals subparagraph117(2)(b)(i) of the Child Support Actwhich provides that a court may depart from the formula assessmentprescribed in the Act, where high costs are involved in enabling aparent to have contact with a child. This item substitutesthe word ‘contact’ with ‘care for’.This amendment updates the terminology to remove the reference tocontact.
990. Thepossible ‘high costs’ of caring for a child aredescribed in item 35 of this Schedule, above.
Item 37- Subsection 117(3)
991. Item37 amends subsection117(3) of the Child Support Act whichsets out when ‘high costs’ of contact will beestablished. The phrase ‘have contact with’ ischanged to ‘care for’. This amendment updates theterminology to remove the reference to contact.
Item 38- Subsection 117(3)
992. Item38 replaces the reference in subsection117(3) to‘sub-sub-paragraph117(2)(b)(i)(A)’ with areference to ‘subparagraph117(2)(b)(i)’.This is a consequential amendment due to the changes introduced byitem 35 of this Schedule, above.
Item 39- Subsections 117A(3A) and (3B)
993. Item39 replaces the reference in subsection117(3) to‘sub-sub-paragraph117(2)(b)(i)(C)’ with areference to ‘subparagraph117(2)(b)(ib)’.This is a consequential amendment due to the changes introduced byitem 35 of this Schedule, above.
FamilyLaw Act 1975
Item 40- Subsection 4(1) (definition of contactorder )
994. Item40 repeals the definition of ‘contact order’ insection4, which is the definition section of the Act, toensure the more generic description of parenting ordersoperates.
Item 41- Subsection 4(1) (definition of has )
995. Item41 repeals the definition of ‘has’ in section4,which is the definition section of the Act, which refers to aperson who has a residence, contact or specific issues order.This terminology is no longer relevant.
Item 42- Subsection 4(1) (definition of made infavour )
996. Item42 repeals and replaces the definition of ‘made infavour’ in section4, which is the definition section ofthe Act. The new definition changes the reference from‘a residence, contact and specific issues order’ to‘a parenting order.’ This ensures the moregeneric description of parenting orders operates.
Item -43 - Subsection 4(1) (definition of overseas childorder )
997. Item43 moves to the definition provision in subsection4(1) thedefinition of ‘overseas child order’, which iscurrently in SubdivisionC of Division13 ofPartVII. Subdivision C deals with the registration ofoverseas orders providing for children. The definition hasbeen amended to include an order that provides for a person tospend time with a child. This change is consequential to theremoval of the references to residence and contact from theAct.
Item 44- Subsection 4(1) (definition of residenceorder )
998. Item44 repeals the definition of ‘residence order’ insection4, which is the definition section of the Act, toensure the more generic description of parenting ordersoperates.
Item 45- Subsection 4(1) (definition of specific issuesorder )
999. Item45 repeals the definition of ‘specific issues order’ insection4, which is the definitions section of the Act, toensure the more generic description of parenting ordersoperates.
Item 46- Subsection 4(1)
1000. Item 46 moves to the definition provision insubsection4(1) the definition of ‘State childorder’, which is currently in SubdivisionB ofDivision13 of PartVII. Subdivision B deals withthe registration of State and Territory orders providing forchildren. The definition has been amended to include an orderthat provides for a person to spend time with a child. Thischange is consequential to the removal of the references toresidence and contact from the Act.
Item 47- Subsection 4(1)
1001. Item 47 inserts in the definition provision in subsection4(1) a new definition of ‘SubdivisionC parentingorder’. SubdivisionC of Division13 dealswith the registration of overseas orders. A‘SubdivisionC parenting order’ is defined toinclude a parenting order to the extent that it deals with whom achild lives with, spends time with or who is to be responsible fora child’s day to day care, welfare and development.This new definition replaces the definition of ‘careorder’ in the existing section70F which is repealed byitem 60 of Schedule9. The amendment ensures thatthe more generic description of parenting orders operates.
Item 48- Subsection 26B(1A)
1002. Item 48 amends the definition of an ‘excluded childorder’ in section26B(1A) to remove references toresidence, contact and specific issues orders. This ensuresthe more generic description of parenting ordersoperates.
1003. The power to make excluded child orders cannot be delegatedto judicial registrars under section26B(1) which is thesection that sets out the powers that may be delegated to judicialregistrars.
Item 49- Subsection 37A(2A)
1004. Item 49 amends the definition of ‘excluded childorders’ in section37A(2A) to remove references toresidence, contact and specific issues orders. This ensuresthe more generic description of parenting ordersoperates.
1005. The power to make excluded child orders cannot be delegatedto registrars under section37, which is the section thatdeals with the delegation of the powers of the Court toregistrars.
Item 50- Section 60C (table item 6)
1006. Item 50 adds to the description of Division6 in thetable in section60C of the Act. This table gives anoutline of PartVII of the Act (Children). A referenceto attending family dispute resolution is added to the descriptionof what Division6 of the Act does. The additionclarifies that the division deals with the applying for and makingof parenting orders, (other than child maintenance orders) afterparties have attended family dispute resolution where this isnecessary.
1007. New section 60I inserted by Schedule 1 provides forcompulsory attendance at family dispute resolution in a range ofcirc*mstances, prior to lodging an application with thecourt. This is a key change to encourage a culture ofa*greement making and avoidance of an adversarial court system.
Item 51- Section 60C (table item 6)
1008. Item 51 removes the reference to residence, contact andspecific issues orders in item 6 of the table in section60Cof the Act. This table gives an outline of PartVII ofthe Act (Children). The change is to reflect the genericdescription of parenting orders that now operates inPartVII.
Item 52- Section 60C (table item 11)
1009. Item 52 removes the reference to ‘contact ordersetc.’ in item 11 of the table in section60C of theAct. This table gives an outline of PartVII of the Act(Children). The term ‘contact orders etc.’ isreplaced with ‘parenting orders’. This is to ensure themore generic description of parenting orders operates.
Item 53- Section 60C (table item 13A)
1010. Item 53 removes the reference to ‘for contactforegone’ in item13 of the table in section60C ofthe Act. This table gives an outline of PartVII of theAct (Children). Item13 describes Division13Awhich relates to enforcement of orders affecting children.The reference to ‘for contact foregone’ is replacedwith the more general description of who a child did not spend timewith or did not live with. This amendment updates theterminology to remove the reference to contact.
Item 54- Subsection 63C(4)
1011. Item 54 repeals and replaces subsection63C(4) which isthe subsection that explains what constitutes ‘a childwelfare provision’ in a parenting plan. It clarifiesthat provisions of a parenting plan that deal with matters otherthan the maintenance of a child are ‘child welfareprovisions’. The new definition avoids usingterminology such as ‘contact’. The definition of‘a child welfare provision’ is relevant tosection63F which applies to a registered parenting plan thatcontains child welfare provisions.
1012. Registration of parenting plans was removed by the FamilyLaw Amendment Act2003 . These provisions thereforeonly relate to existing registered parenting plans.
Item 55- Subsection 63C(5)
1013. Item 55 is a consequential amendment tosubsection63C(5) which is the subsection that explains whatconstitutes a child maintenance provision in a parentingplan. Subsection63C(5) refers to subsection63C(2)which sets out the issues a parenting plan may deal with. Anew subsection63C(2) is inserted in item 13 ofSchedule 1. The new subsection63C(2) listsadditional factors that can be dealt with in a parentingplan. The reference to a parenting plan dealing withmaintenance of a child now appears in paragraph63C(2)(f), notparagraph63C(5)(c). Item 55 addressesthis.
Item 56- Subsection 63F(3)
1014. Item 56 repeals and replaces the existingsubsection63F(3) which describes the effect of child welfareprovisions in registered parenting plans. It does this toremove the current references to ‘residence order’,‘contact order’ and ‘specific issuesorder’. The section now provides that provisionsrelating to child welfare, which are defined insubsection63C(4), will operate as if they were provisions ofa parenting order.
1015. Registration of parenting plans was removed by the FamilyLaw Amendment Act2003 . These provisions thereforeonly relate to existing registered parenting plans.
Item 57- Paragraph 65A(b)
1016. Item 57 repeals and replaces the existing section65Awhich is the section that describes what Division 6 ofPartVII (Children) of the Act deals with. The amendmentremoves the references to residence, contact and specific issuesorders from paragraph65A(b). The new paragraph providesthat Division 6 deals with the general obligations created byparenting orders other than child maintenance orders. Thisensures that the more generic description of parenting ordersoperates.
Item 58- Subsection 65G(1)
1017. Item 58 repeals and replaces subsection65G(1) whichsets out when section65G applies. Section65G isthe section that sets out the special conditions that apply whenthe court proposes to make a residence or specific issues order byconsent, in favour of a non parent. Newsubsection65G(1) changes the terminology to refer toparenting orders that deal with whom a child should live with(rather than residence orders). New subsection65G(1A)changes the terminology to refer to parenting orders that deal withthe allocation of parental responsibility or a component ofparental responsibility for a child (rather than specific issuesorders).
1018. New subsections65G(1) and 65G(1A) also include areference to grandparents and other relatives such that theconditions set out in subsection65G(2) do not apply where acourt proposes to order that a child live with a grandparent orother relative or where a grandparent or other relative isallocated parental responsibility or a component of parentalresponsibility for a child. This change is consistent withthe amendments to recognise the need to consider the benefit to thechild of greater involvement of extended family members.
Item 59- Paragraph 65K(1)(a)
1019. Item 59 repeals and replaces the existingparagraph65K(1)(a) which deals with what happens when aparenting order that includes a residence order, does not makeprovision in relation to the death of a parent with whom the childlives. The new paragraph65(K)(1)(a) replaces thereference to residence orders with a reference to a parenting orderthat provides that the child is to live with one of theparents. This ensures that the more generic description ofparenting orders operates.
Item 60- Subsection 65K(3)
1020. Item 60 repeals and replaces the existingsubsection65K(3) which provides that a surviving parent canapply for a residence order in relation to a child where theexisting residence order does not make provision in relation to thedeath of a parent with whom the child lives. The newsubsection65K(3) removes the terminology of residence andreplaces it with a reference to a parenting order that deals withwhom the child is to live. This ensures that the more genericdescription of parenting orders operates.
Item 61- Subdivision C of Division 6 of Part VII (heading)
1021. Item 61 repeals and replaces the heading forSubdivisionC of Division6 of PartVII of the Act(Children). The new heading refers to the general obligationscreated by certain parenting orders. This removes thereference to residence, contact and specific issues orders andensures that the more generic description of parenting ordersoperates.
Item 62- Subsection 65M(1)
1022. Item 62 repeals and replaces the existingsubsection65M(1) which deals with the general obligationscreated by a residence order and replaces it with a new subsectionthat refers to the general obligation created by a parenting orderto the extent that it deals with whom the child is to live.This ensures that the more generic description of parenting ordersoperates.
Item 63- Section 65N and 65P
1023. Item 63 repeals and replaces the existing section65Nwhich sets out the general obligations created by a contactorder. New section65N applies to a parenting order tothe extent that the order deals with whom the child is to spendtime. This removes the terminology of ‘contact’and ensures that the more generic description of parenting ordersoperates. Under new section65N a person must nothinder or prevent a person spending time with the child inaccordance with the parenting order, or interfere with a person andthe child benefiting from spending time with each other under theorder.
1024. Item 63 also inserts a new section65NA which applies toa parenting order to the extent that the order deals with whom achild communicates. This section provides that a personcannot hinder or prevent a person or child from communicating witheach other in accordance with a parenting order or interfere withthe communication that a person and the child are supposed to havewith each other under the order. This new section isnecessary to ensure that the Act sets out general obligations tocover both elements of what were previously contactorders. That is, orders relating to time spent with achild and orders relating to who the child communicates with.
1025. Item 63 also repeals and replaces the existingsection65P which sets out the general obligations created byspecific issues orders that confer responsibility for achild’s care, welfare and development. Newsection65P applies to parenting orders to the extent to whichthe order allocates parental responsibility. This removes theterminology of ‘specific issues orders’ and ensuresthat the more generic description of parenting ordersoperates. Under new section65P, a person must nothinder a person who has been allocated parental responsibilityunder an order in discharging that responsibility.
Item 64 -Paragraphs 65Q(1)(a) and (b)
1026. Item 64 repeals and replaces paragraphs(1)(a) and (b)in section65Q. This section sets out when the court mayissue a warrant for arrest of an alleged offender who has preventedor hindered the carrying out of a parenting order.
1027. Existing paragraph65Q(1)(a) provides that the sectionapplies if a residence order or a contact order is in force inrelation to a child. New paragraph65Q(1)(a) replacesthe references to residence and contact orders with references toorders about whom the child is to live with, spend time with orcommunicate with. This ensures that the more generic description ofparenting orders operates.
1028. Existing paragraph 65Q(1)(b) provides that the section applies ifthe court is satisfied that there are reasonable grounds forbelieving that a person has contravened sections 65M or 65N whichset out the general obligations created by parenting orders thatdeal with whom a child spends time with, and parenting orders thatallocate parental responsibility. Newparagraph65Q(1)(b) is amended to include a reference to newsection65NA inserted by item 63 of this Schedule above whichset out the general obligations created by a parenting order thatdeals with whom a child communicates.
Item 65- Subsection 65X(1)
1029. Item 65 repeals the existing definition of a care order atsubsection65X(1) in SubdivisionE of Division6 ofPartVII which is the subdivision which relates to theobligations under parenting orders relating to taking or sendingchildren from Australia.
1030. The definition is replaced with a definition of ‘a parentingorder to which the Subdivision applies’. The definitionincludes parenting orders about whom a child is to live, spend timeor communicate with and parenting orders that provide for a personto have parental responsibility for a child. This amendmentensures that the more generic description of parenting ordersoperates.
Item 66 -Subsection 65Y(1)
1031. Item 66 amends subsection65Y(1) which imposes an obligationon a party, or a person acting on behalf of a party, not to take achild out of Australia where a residence, contact or care order isin force in relation to a child. The amendment replaces thereference to residence, contact and care orders with a reference tothe new definition of ‘a parenting order to which theSubdivision applies’ inserted by item 65 of thisSchedule. This amendment ensures that the more genericdescription of parenting orders operates.
Item 67 - Paragraph 65Y(2)(a)
1032. Item 67 amends subsection65Y(2)(a) which provides that thereis no prohibition against taking or sending a child from Australiato outside of Australia, if it is consented to in writing.The amendment replaces the reference to ‘the PartVIIorder’ with the new definition of ‘a parenting order towhich this Subdivision applies’ as used insubsection65Y(1). This amendment ensures that the moregeneric description of parenting orders operates.
Item 68 -Paragraph 65Y(2)(b)
1033. Item 68 amends paragraph65Y(2)(b) which provides that thereis no prohibition against taking or sending a child from Australiato outside of Australia, if it is done in accordance with an orderof a court made under this part or under a law of a State orTerritory. The amendment replaces the reference ‘thePart VII order’ with the new definition of ‘a parentingorder to which this Subdivision applies’ as used insubsection65Y(1). This amendment ensures that the moregeneric description of parenting orders operates.
Item 69- Subsection 65Z(1)
1034. Item 69 amends the terminology in subsection65Z(1).This subsection prohibits the taking or sending of a child fromAustralia where proceedings for the making of ‘a residenceorder, a contact order or a care order’ are pending, unlessan exception in subsection65Z(2) applies.Subsection65Z(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 thisSubdivision applies’ inserted by item 65 of thisSchedule. This amendment ensures that the more genericdescription of parenting orders operates.
Item 70- Paragraph 65ZA(1)(a)
1035. Item 70 repeals and replaces the existingparagraph65ZA(1)(a). Section65ZA imposesobligations on owners etc, of aircraft and vessels in relation totaking or sending a child from Australia, when a residence, contactor care order is in place. Newparagraph65ZA(1)(a) replaces the reference to ‘aresidence order, a contact order or a care order’ with thenew definition of ‘a parenting order to which thisSubdivision applies’ inserted by item65 of thisSchedule. This amendment ensures that the more generic descriptionof parenting orders operates.
Item 71- Paragraph 65ZA(1)(b)
1036. Item 71 amends paragraph 65ZA(1)(b). Section65ZAimposes obligations on owners etc, of aircraft and vessels inrelation to taking or sending a child from Australia, when aresidence, contact or care order is in place. The amendmentreplaces the reference to ‘PartVII’ with the newdefinition of ‘parenting order to which the Subdivisionapplies’ inserted by item65 of this Schedule.This amendment ensures that the more generic description ofparenting orders operates.
Item 72- Subsections 65ZA(3) and (4)
1037. Item 72 amends paragraphs65ZA(3) and (4).Section65ZA imposes obligations on owners etc, of aircraftand vessels in relation to taking or sending a child fromAustralia, when a residence, contact or care order is inplace. The amendment replaces the reference to‘PartVII’ with the new definition of‘parenting order to which the Subdivision applies’inserted by item 65 of this Schedule. This amendment ensuresthat the more generic description of parenting ordersoperates.
Item 73- Paragraph 65ZB(1)(a)
1038. Item 73 amends paragraph65ZB (1)(a). Section65ZBimposes obligations on owners etc, of aircraft and vessels inrelation to taking or sending a child from Australia, when aresidence, contact or care order is pending. The amendmentsubstitutes the reference to ‘a residence, contact or careorder’ with the new definition of a ‘parenting order towhich the Subdivision applies’ inserted by item65 ofthis Schedule. Thisamendment ensures that the more generic description of parentingorders operates.
Item 74- Paragraphs 67K(1)(a) to (c)
1039. Item 74 repeals and replaces paragraphs67K(1)(a) to (c) .Section67K sets out who may apply for a location order.The amendment replaces the references to residence, contact andspecific issues orders in paragraphs(a) to (c) withreferences to parenting orders about whom a child is to live, spendtime, or communicate with, and parenting orders about parentalresponsibility or a component of parental responsibility.This amendment ensures that the more generic description ofparenting orders operates.
Item 75- Subparagraphs 67Q(a)(ii) and (iii)
1040. Item 75 repeals and replaces subparagraphs67Q(a)(ii) and(iii). Section67Q sets out the meaning of a recoveryorder which includes orders about to whom the court may order thereturn of a child. The existing subparagraphs refer toresidence, contact and specific issues orders. The amendmentreplaces these references with references to parenting orders aboutwhom a child is to live, spend time, or communicate with andparenting orders about parental responsibility or components ofparental responsibility. This amendment ensures that the moregeneric description of parenting orders operates.
Item 76 -Subparagraphs 67Q(d)(ii) to (iv)
1041. Item 76 repeals subparagraphs67Q(d)(ii) to (iv) and replacesthem with new subparagraphs67Q(d)(ii) and (iii).Section67Q sets out the meaning of a recovery order whichincludes orders requiring a returned child to be delivered toparticular people. The existing subparagraphs refer toresidence, contact and specific issues orders. The amendmentreplaces these references with references to parenting orders aboutwhom a child is to live, spend time, or communicate with andparenting orders about parental responsibility or components ofparental responsibility. This amendment ensures that the moregeneric description of parenting orders operates.
Item 77- Paragraphs 67T(a) to (c)
1042. Item 77 repeals and replaces paragraphs67T(a) to (c) whichset out who may apply for a recovery order. The existingparagraphs refer to residence, contact and specific issuesorders. The amendment replaces these references withreferences to parenting orders about whom a child is to live, spendtime, or communicate with and parenting orders about parentalresponsibility or components of parental responsibility. Thisamendment ensures that the more generic description of parentingorders operates.
Item 78- Subparagraphs 68B(1)(b)(ii) and (iii)
1043. Item 78 repeals subparagraphs68B(1)(b)(ii) and (iii) whichprovide that the court can issue an injunction relating to thewelfare of a child. The existing provisions refer to peoplewho have residence, contact and specific issues orders. Theamendment replaces these with references to parenting orders aboutwith whom a child is to live, spend time, or communicate andparenting orders about parental responsibility or components ofparental responsibility. This ensures that the more genericdescription of parenting orders operates.
Item 79- Paragraph 69Z(2)(c)
1044. Item 79 repeals and replaces paragraph69Z(2)(c) whichprovides that a medical procedure in relation to parentage testingmay not be carried out on a child under 18 without variousconsents. The new provision replaces references to a personwith a specific issues order about parental responsibility, with areference to a person with a parenting order under which they haveparental responsibility for the child. This amendment ensuresthat the more generic description of parenting orders operates.
Item 80- Paragraph 69ZA(1)(c)
1045. Item 80 repeals paragraph69ZA(1)(c) which provides that aperson is not liable for civil or criminal liability in relation tothe proper carrying out of a parentage testing procedure, providedthere is appropriate consent. The new provision replacesreferences to a person with a specific issues order about parentalresponsibility, with a reference to a person with a parenting orderunder which they have parental responsibility for the child.This amendment ensures that the more generic description ofparenting orders operates.
Item 81- Subparagraph 69ZH(3)(a)(ii)
1046. Item 81 repeals and replaces subparagraph69ZH(3)(a)(ii) whichprovides for the extension of the operation of presumptions ofparentage arising out of marriage to other parts of the Act whichare confined to a child of a marriage. The newprovisions replace references to residence and contact withreferences to with whom the child lives and spends time.
Item 82- Subsection 70J(1)
1047. Item 82 amends subsection70J(1) which deals with the effectof registration of an overseas order on the exercise ofjurisdiction by an Australian court. The amendment replacesthe reference to ‘a residence, contact or a care order’with a reference to ‘a SubdivisionC parentingorder’ inserted by item47 of this Schedule.This amendment ensures that the more generic description ofparenting orders operates.
Item 83- Paragraph 70J(1)(a)
1048. Item 83 repeals and replaces paragraph70J(1)(a) which dealswith the circ*mstances in which an Australian court can exercisejurisdiction where an overseas child order is registered undersection70G. The new provision expands the descriptionof the type of overseas orders which, if registered, means that thecourt has to have the consent of the parties under the ordersbefore it can exercise jurisdiction. The expanded descriptionincludes orders which provide for whom the child is to live, spendtime and have contact with and who has rights of custody or accessin relation to the child. This amendment ensures that themore generic description of parenting orders operates.
Item 84- Subsection 70J(2)
1049. Item 84 amends subsection70J(2) which provides the limitedcirc*mstances in which the court can exercise jurisdiction and makeparenting orders in relation to a child who is subject to anoverseas parenting order. The amendments substitute ‘aSubdivisionC parenting order’ (inserted by item47of this Schedule) for a reference to ‘a residence order, acontact order or a care order’. This amendment ensuresthat the more generic description of parenting orders operates.
Item 85 -Paragraph 70J(2)(b)
1050. Item 85 amends paragraph70(J)(2)(b) which provides that acourt may not make a SubdivisionC parenting order in relationto a child who is the subject of an overseas child order unless itis satisfied that there has been a change in the circ*mstances of achild. The amendment replaces the reference to ‘aresidence order, contact order or a care order’ with areference to ‘a SubdivisionC parenting order’(inserted by item 47 of this Schedule). This amendment ensures thatthe more generic description of parenting orders operates.
Item 86- Paragraph 70K(b)
1051. Item 86 amends paragraph70K(b) which provides that a courtmust cancel the registration of an overseas child order if it makesa residence order, contact order or a care order in relation to thechild. The amendment replaces the reference to ‘a residenceorder, contact order or a care order’ with a reference to‘a SubdivisionC parenting order’ (inserted byitem 47). This amendment ensures that the more genericdescription of parenting orders operates.
Item 87- Subsection 70L(1) (paragraph (a) of the definition of Australian child order )
1052. Item 87 amends the definition of ‘Australian childorder’ in subsection70L(1). Section70Ldeals with the relationship between Australian orders andregistered overseas child orders. The amendment replaces thereference to ‘a residence order, a contact order or a careorder’ with a reference to ‘a SubdivisionCparenting order’ (inserted by item 47 of this Schedule). Thisamendment ensures that the more generic description of parentingorders operates.
Item 88- Subsection 70L(1) (paragraph (a) of the definitionof responsible person )
1053. Item 88 repeals and replaces the definition of a ‘responsibleperson’ in subsection70L(1). Section70L dealswith the relationship between Australian orders and registeredoverseas child orders. The amendment replaces the referenceto ‘live or have contact with’ under an Australian oroverseas child order with references to ‘live’,‘spend time with’ and ‘have contactwith’.
Item 89- Paragraph 70M(1)(a)
1054. Item 89 repeals and replaces paragraph70M(1)(a) which dealswith the circ*mstances under which a Registrar can send documentsto an overseas jurisdiction. The amendment replacesreferences to residence, contact and specific issues orders with areference to a parenting order, other than a child maintenanceorder. This amendment ensures that the more generic description ofparenting orders operates.
Item 90 -Paragraph 70M(3)(a)
1055. Item 90 repeals and replaces paragraph70M(3)(a) which dealswith who may request that documents may be transmittedoverseas. The amendment adds a person with whom the child issupposed to spend time to the list. This ensures theterminology of the section is consistent with the new terminologyin the Act.
Item 91- Subsection 70N(1)
1056. Item 91 repeals and replaces subsection70N(1) which providesfor regulations to be made about sending Australian ordersoverseas. The amendment removes the references to residence,contact and specific issues orders and replaces this with areference to a parenting order. This amendment ensures the moregeneric description of parenting orders operates.
Item 92- Paragraphs 79A(1AA)(b) and (c)
1057. Item 92 amends paragraphs79A(1AA)(b) and (c).Subsection79A(1AA) defines a person who has ‘caringresponsibility’ for a child for the purposes ofsubsection79A(1). The amendment removes the referencesto residence and specific issues orders and replaces them withreferences to parenting orders that provide that a child is to livewith a person or that a person has parental responsibility for achild. This amendment ensures the more generic description ofparenting orders operates.
Item 93- Paragraphs 90K(2)(b) and (c)
1058. Item 93 repeals paragraphs90K(2)(b) and (c).Subsection90K(2) defines a person who has ‘caringresponsibility’ for a child for the purposes ofparagraph90K(1)(d). The amendment removes thereferences to residence and specific issues orders and replacesthem with references to parenting orders that provide that a childis to live with a person or that a person has parentalresponsibility for a child. This amendment ensures the moregeneric description of parenting orders operates.
Item 94- Subparagraph 91(1)(b)(i)
1059. Item 94 repeals subparagraph91(1)(b)(i) to remove thereferences to residence, contact and specific issues orders inrelation to the Attorney-General’s power to intervene in anyproceedings under this Act. This reference is replaced with areference to a parenting order, other than a child maintenanceorder. This amendment ensures the more generic description ofparenting orders operates.
Item 95 - Paragraphs 92A(2)(ba) and (bb)
1060. Item 95 repeals paragraphs92A(2)(ba) and (bb) which relate topersons who may intervene in proceedings. The amendmentreplaces the references to a person with a residence order orspecific issues order with a reference to a parenting order.This amendment ensures the more generic description of parentingorders operates.
Item 96- Paragraph 111B(1A)(c)
1061. Item 96 repeals and replaces paragraph111B(1A)(c) which dealswith the Central Authority under the regulations applying for anorder on behalf of another person under the Convention on the CivilAspects of International Child Abduction. The reference to acontact order is replaced by a parenting order that deals with aperson with whom the child is to spend time or communicate.This amendment ensures the more generic description of parentingorders operates.
Item 97- Paragraph 111B(4)(b)
1062. Item 97 repeals and replaces paragraph111B(4)(b) which dealswith who has rights of custody for the purpose of the Convention onthe Civil Aspects of International Child Abduction. Theamendment replaces the references to residence order and specificissues order with a reference to a parenting order about whom achild is to live with and who has parental responsibility for achild. This amendment ensures the more generic description ofparenting orders operates.
Item 98- Paragraph 111B(4)(d)
1063. Item 98 repeals and replaces paragraph111B(4)(d) which dealswith who has rights of custody for the purpose of the Convention onthe Civil Aspects of International Child Abduction. Theamendment removes the reference to a contact order and replaces itwith reference to a parenting order about time spent with a childor communication with a child. This amendment ensures themore generic description of parenting orders operates.
Item 99- Subsection 111B(4) (note)
1064. The note inserted by item 99 explains that for the purpose of theConvention on the Civil Aspects of International Child Abduction, aparent 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
1065. Item 100 repeals section111CW which deals with how courtsshould deal with court proceedings for contact made in overseasjurisdictions. This reference to contact is replaced withreferences to with whom a child is to spend time andcommunicate. This is in the context of the provisions inPartXIIIAA of the Act relating to the internationalprotection of children.
Item 101- Paragraph 117A(1)(a)
1066. Item 101 repeals paragraph117A(1)(a) which relates to thereparation for certain losses and expenses relating to a childbeing taken away in contravention of a residence or contactorder. This is replaced by a right to the same reparation forcertain losses and expenses relating to a person who takes a childaway from a person with an order providing for whom the childlives, spends time or communicates with.
MigrationAct 1958
Item 102- Subsection 192(8)
1067. Item 102 replaces the reference to a ‘specific issuesorder’ in the definition of a guardian insubsection192(8) of the Migration Act1958 , witha reference to a person with a ‘parenting order’ asdefined under the Family Law Act1975 . Section192deals with the detention of a person whose visa is liable to becancelled. The amendment is a consequential amendment toensure that the terminology is consistent.
Part 2- Savings
Item 103- Definitions
1068. This item sets out the definitions of terms used in Part2,which deals with saving regulations made under the existingAct.
Item 104 -Saving of regulations
1069. This item provides for the saving of regulations made under theexisting Act. It provides that even where a provision of theexisting Act (specified in the table) has been repealed,regulations that were made for the purposes of that provision, andwere in force immediately before the commencement of this Schedule,continue to have effect as if they had been made for the purposesof the corresponding provision of the new Act (also specified inthe table).
SCHEDULE 9- RELOCATION OF DEFINED TERMS USED IN PART VII
1070. The effect of Schedule9 is to move all of the defined termsfrom PartVII of the Act related to children tosubsection4(1) which is the general definition section forthe whole of the Family Law Act. This will form a dictionaryfor all of the terms defined in PartVII. The aim is toimprove the readability of the Act for users.
1071. This Schedule has been developed partially in response toRecommendation 50 of the LACA Committee. Recommendation 50was that the Family Law Act be redrafted to provide a consolidateddictionary or glossary of defined terms, to assist in easiercomprehension of the Act. As a first step, the defined termsin PartVII have been consolidated. Further work on adictionary for the entire Act would be resource intensive and couldbe done as part of a rewrite of the Act. Many of theprovisions particularly those related to property andsuperannuation require consequential amendments to a large numberof other Commonwealth Acts. In addition there is considerablework to be done to update Regulations and Rules.
A New Tax System (Family Assistance) Act1999
Item 1 - amendment to definition of familylaw order
1072. This item is a consequential amendment to the definition provisionin section3 of A New Tax System (Family Assistance) Act1999 . The definition of ‘family law order’ isamended by changing the reference to ‘section60D’of the Family Law Act in relation to family violence orders to‘section4’ of the Family Law Act. Theamendment is necessary as the definition of a ‘familyviolence order’ has moved from section60D, whichcontained definitions for PartVII about children, to thegeneral definition provision in subsection4(1) of theAct.
Australian Passports Act2005
Item 2 - amendment to subsection6(2)
1073. Item 2 is a consequential amendment to the definition provision insection6 of the Australian Passports Act 2005 .Subsection6(2) refers to ‘an overseas child orderwithin the meaning of section70F of the Family LawAct’. The amendment removes the reference to‘section70F’. The amendment is necessary assection70F is repealed as a consequence of moving thedefinitions in the provision to subsection4(1) which is thegeneral definition provision for the Act.
ChildSupport (Assessment) Act 1989
Item 3- amendment to definition of court order
1074. This item is a consequential amendment to amend paragraph(b)of subsection8A(7) of the Child Support (Assessment) Act1989 . The definition of court order is amended bychanging the reference to ‘section60D’ of theFamily Law Act to ‘section4’ of the Family LawAct. The amendment is necessary as the definition of a‘family violence order’ has moved fromsection60D, which contained definitions for PartVIIabout children, to the general definition provision insubsection4(1) of that Act.
Child Support (Registration andCollection) Act 1988
Item 4 - amendment to definition of child of a marriage
1075. Item 4 is a consequential amendment to remove the reference to‘PartVII’ from the definition of ‘child ofa marriage’ in section4(1) of the Child Support(Registration and Collection) Act 1988 . The amendment isnecessary as the definitions previously found in PartVII ofthe Family Law Act 1975 have moved to subsection4(1)which is the general definition provision in the Act.
Item 5 - amendment to definition of step-parent
1076. Item 5 is a consequential amendment to remove the reference to‘PartVII’ from the definition of‘step-parent’ in section4(1) of the ChildSupport (Registration and Collection) Act 1988 . Theamendment is necessary as the definitions previously found inPartVII of the Family Law Act 1975 have moved tosubsection4(1) which is the general definition provision inthe Act.
Family Law Act 1975
Item 6 - insert to subsection4(1)
1077. Item 6 moves the definition of ‘adopted’ in relation toa child from section60D, which was where the defined termsfor PartVII were, to subsection4(1) which is the maindefinition provision in the Act.
Item 7 - insert to subsection4(1)
1078. Item 7 moves to the definition provision in subsection4(1)the definition of ‘alleged contravention’, which iscurrently in SubdivisionD of Division6 ofPartVII. That definition is relevant to provisionsdealing with how the court deals with people who have been arrestedfor contravention of a contact order. The definition in thiscase is limited to this subdivision due to the specific referenceto the arrested person which would not be relevant in other partsof the Act.
Item 8- insert to subsection 4(1)
1079. Item8 moves to the definition provision insubsection4(1) the definition of ‘allegedoffender’, which is currently in SubdivisionD ofDivision6 of PartVII. That definition is relevantto provisions dealing with how the court deals with people who havebeen arrested for contravention of a contact order. Thedefinition in this case is limited to this subdivision due to thespecific reference to the arrested person which would not berelevant in other parts of the Act.
Item 9- insert to subsection 4(1)
1080. Item 9 moves to the definition provision in subsection4(1)the definition of ‘applied provisions’, which iscurrently in Division13A of PartVII. Thatdivision deals with applications related to contraventions oforders affecting children. There are consequential changes tothe references in the provisions due to the changes to thecompliance regime described in Schedule2.
Item 10 - insert to subsection4(1)
1081. Item 10 moves to the definition provision in subsection4(1)the definition of ‘appropriate authority’, which iscurrently in section67H which is the interpretation sectionin SubdivisionC of Division8 of PartVII andrelates to the location and recovery of children. Thedefinition is limited to PartVII as it has particularsignificance to information about the location of children whichwould not be relevant to other parts of the Act.
Item 11 - insert to subsection4(1)
1082. Item 11 moves to the definition provision in subsection4(1)the definition of ‘arresting person ’, which iscurrently in SubdivisionD of Division6 ofPartVII. The definition is relevant to applicationsrelated to contraventions of orders affecting children however thedefinition also has a generic application.
Item 12 - insert to subsection4(1)
1083. Item12 moves to the definition provision insubsection4(1) the definition of ‘artificial conceptionprocedure ’, which is currently in section60D,which was where the defined terms for PartVII used tobe.
Item 13 - insert to subsection4(1)
1084. Item13 moves to the definition provision insubsection4(1) the definition of ‘birth’ , which is currently in section60D, which was where the definedterms for PartVII used to be. It makes it clear that abirth includes a still birth. The definition will havegeneric application throughout the Act. The term is relevantfor provisions about the child maintenance that a mother can claimfor child birth expenses. The only other reference to‘birth’ in the Act is in section102 about whatcan be used as proof of birth which refers to a certificate orentry of birth.
Item 14 - insert to subsection4(1)
1085. Item 14 moves to the definition provision in subsection4(1)the definition of ‘captain’ , which is currentlyin section65X which is the interpretation provision forSubdivisionE of PartVII which is about obligationsunder parenting orders relating to the taking or sending of a childfrom Australia. Certain obligations are placed on a captainof an aircraft or ship who is appropriately served to prevent theremoval of a child from Australia.
Item 15- insert to subsection 4(1)
1086. Item 15 moves to the definition provision in subsection4(1)the definition of ‘child ’, which is currently insection60D, which was where the defined terms forPartVII used to be. It makes it clear that a childincludes both an adopted and a still born child. The term hasgeneric application.
Item 16 - insert to subsection4(1)
1087. Item 16 moves to the definition provision in subsection4(1)the definition of ‘childbirth maintenanceperiod ’, which is currently in section60D, whichwas where the defined terms for PartVII used to be. Theterm has generic application. The normal period that a fatherwill be obliged to pay maintenance in relation to the birth of achild is 2 months prior to the due date of birth but may beextended up to 3 months if the mother is advised by a doctor tostop working for health reasons related to the pregnancy.
Item 18 - insert to subsection4(1)
1088. Item 18 moves to the definition provision in subsection4(1)the definition of ‘child maintenanceprovisions’ , which is currently in section60D,which was where the defined terms for PartVII used tobe. The term has generic application. It refers theuser to subsection63C(5) in Division4 which sets outwhat parenting plans are.
Item 19- insert to subsection 4(1)
1089. Item 19 moves to the definition provision in subsection4(1)the definition of ‘child welfare law’ , which iscurrently in section60D, which was where the defined termsfor PartVII used to be. The term has genericapplication.
Item 20 - insert to subsection4(1)
1090. Item 20 moves to the definition provision in subsection4(1)the definition of ‘child welfare officer’ , whichis currently in section60D, which was where the defined termsfor PartVII used to be. The term has genericapplication.
Item 21 - insert to subsection4(1)
1091. Item 21 moves to the definition provision in subsection4(1)the definition of ‘child welfare provisions’ , which is currently in section60D, which was where the definedterms for PartVII used to be. The definition refers theuser to subsection63C(4) which specifies certain topics dealtwith in parenting plans as child welfare provisions.
Item 22 - insert to subsection4(1)
1092. Item 22 moves to the definition provision in subsection4(1)the definition of ‘Commonwealth informationorder’ , which is currently in section67H.Section67H is the interpretation provision ofSubdivisionC of Division8 of Part VII about thelocation and recovery of children. It refers the user tosubsection67J(2) which makes clear that it is an order to theSecretary of a Department to provide the Registry Manager of thecourt with information about the location of a child which iscontained in the agency records.
Item 23 - insert to subsection4(1)
1093. Item 23 moves to the definition provision in subsection4(1)the definition of ‘community service order’ , which is currently in section70NB in Subdivision13Adealing with compliance with parenting orders. Communityservice orders are one of the types of orders that the court canmake for contraventions of orders relating to children. Itrefers the user to subsection70NFC(3). This is aconsequential amendment to the numbering due to changes to thecompliance regime in Schedule 2. The provision sets out thetypes of orders that might be classified as community serviceorders.
Item 24 - insert to subsection4(1)
1094. Item 24 moves to the definition provision in subsection4(1)the definition of ‘contravened’ , which iscurrently in section70NB in Subdivision13A dealing withcompliance with parenting orders. It refers the user tosection70NAC. This is a consequential amendment to thenumbering due to changes to the compliance regime inSchedule2. The provision makes clear that a person hascontravened an order if they intentionally fail to comply or makeno reasonable attempt to comply with an order or if they preventcompliance by a person bound by an order, or aid or abets acontravention by another person bound by the order.
Item25- insert to subsection 4(1)
1095. Item 25 moves to the definition provision in subsection4(1)the existing definition of ‘de facto relationship’which is currently in section60D, which was where the definedterms for PartVII used to be. The term has genericapplication throughout the Act.
Item 26- insert to subsection4(1)
1096. Item 26 moves to the definition provision in subsection4(1)the existing definition of ‘Department’ which iscurrently in section67H, which is the interpretationprovision of SubdivisionC of Division8 about thelocation and recovery of children. The definition is limitedin application to the provisions about these orders.
Item 27- insert to subsection4(1)
1097. Item 27 moves to the definition provision in subsection4(1)the existing definition of ‘education’ which iscurrently in section60D, which was where the defined termsfor PartVII used to be. The definition will havegeneric application. It makes it clear that‘education’, wherever used in the Act, can includeapprenticeship and vocational education training. This isrelevant to provisions about child maintenance in PartVIIabout children and also to provisions about property settlements inPartVIII of the Act.
Item28- insert to subsection 4(1)
1098. Item 28 moves to the definition provision in subsection4(1)the existing definition of ‘excluded order’ which iscurrently in section70F which is the interpretation provisionfor SubdivisionC of Division13. That subdivisionconcerns the registration of overseas orders.
Item 29 - insert to subsection4(1)
1099. Item 29 moves to the definition provision in subsection4(1)the definition of ‘family violence order’, which iscurrently in section60D, which was where the defined termsfor PartVII used to be.
Item 30 - insert to subsection4(1)
1100. Item 30 moves to the definition provision in subsection4(1)the definition of ‘guardian’ , which is currentlyin section60D, which was where the defined terms forPartVII used to be.
Item 31- insert to subsection 4(1)
1101. Item 31 moves to the definition provision in subsection4(1)the definition of ‘information about the child’slocation’ , which is currently insection67H. This is the interpretation provision ofSubdivisionC of Division8 about the location andrecovery of children.
Item 32 - insert to subsection4(1)
1102. Item 32 moves to the definition provision in subsection4(1)the definition of ‘interests’ , which iscurrently in section60D, which was where the defined termsfor PartVII used to be.
Item 33 - insert to subsection4(1)
1103. Item 33 moves to the definition provision in subsection4(1)the definition of ‘location order’ , which iscurrently in section67H. This is the interpretationprovision of SubdivisionC of Division8 about thelocation and recovery of children. The definition refers tosubsection67J(1) which sets out that a ‘locationorder’ relates to orders by the court for information about achild’s location to be provided to the Registry Manager.
Item 34 - insert to subsection4(1)
1104. Item 34 moves to the definition provision in subsection4(1)the definition of ‘medical expenses’ , which iscurrently in section60D, which was where the defined termsfor PartVII used to be.
Item 35 - insert to subsection4(1)
1105. Item 35 moves to the definition provision in subsection4(1)the definition of ‘medical practitioner’, which iscurrently in section60D, which was where the defined termsfor PartVII used to be.
Item 36 - insert to subsection4(1)
1106. Item 36 moves to the definition provision in subsection4(1)the definition of ‘member of the family’ for thepurposes of the definition of ‘ step-parent’ , which is currently insection60D, which was where the defined terms forPartVII used to be. The details of the definition areat subsection4(1AB). That provision sets out in detailwho is a family member.
Item 37 - insert to subsection4(1)
1107. Item 37 moves to the definition provision in subsection4(1)the definition of ‘order under this Act affectingchildren’ , which is currently in section70NBwhich contains the definitions relevant to contraventionapplications.
Item 38- insert to subsection 4(1)
1108. Item 38 moves to the definition provision in subsection4(1)the definition of ‘parent’ , which is currentlyin section60D, which was where the defined terms forPartVII used to be. The definition is restricted toPartVII as it specifically relates to references in relationto a child who is adopted.
Item 39 - insert to subsection4(1)
1109. Item 39 moves to the definition provision in subsection4(1)the definition of ‘parentage testing order’ , which is currently in section60D, which was where the definedterms for PartVII used to be.
Item 40 - insert to subsection4(1)
1110. Item 40 moves to the definition provision in subsection4(1)the definition of ‘parentage testing procedure’ , which is currently in section60D, which was where the definedterms for PartVII used to be.
Item 41 - insert to subsection4(1)
1111. Item 41 moves to the definition provision in subsection4(1)the definition of ‘parental responsibility’ , which is currently in section60D, which was where the definedterms for PartVII used to be.
Item 43 - insert to subsection4(1)
1112. Item 43 moves to the definition provision in subsection4(1)the definition of ‘pending’ .
Item 44 - insert to subsection4(1)
1113. Item 44 moves to the definition provision in subsection4(1)the definition of ‘prescribed adopting parent’, whichis currently in section60D, which was where the defined termsfor PartVII used to be.
Item 45 - insert to subsection4(1)
1114. Item 45 moves to the definition provision in subsection4(1)the definition of ‘prescribed child welfareauthority ,’ which is currently in section60D,which was where the defined terms for PartVII used tobe. The definition is relevant for PartVII in relationto children and in PartIX in relation to who can intervene inproceedings where there are issues of child abuse.
Item46- insert to subsection 4(1)
1115. Item 46 moves to the definition provision in subsection4(1)the definition of ‘primary order’ , which iscurrently in section70NB which contains the definitions forDivision13A about contravention applications. Theseprovisions are substantially renumbered and reordered bySchedule2.
Item 47 - insert to subsection4(1)
1116. Item 47 moves to the definition provision in subsection4(1)the definition of ‘principal officer’ , which iscurrently in section67H, which is the interpretationprovision of SubdivisionC of Division8 about thelocation and recovery of children. These officers areprescribed by Regulations.
Item 48 - insert to subsection4(1)
1117. Item 48 moves to the definition provision in subsection4(1)the definition of ‘professional ethics’ , whichis currently in section60D, which was where the defined termsfor PartVII used to be. The definition is generic andwill apply to other uses of this term within the Act such as insubsections111CV(2) and (3) in Division 4 ofPartXIIIAA, which concerns the international protection ofchildren.
Item 49- insert to subsection 4(1)
1118. Item 49 moves to the definition provision in subsection4(1)the definition of ‘reasonable excuse forcontravening’ , which is currently in Division13Aabout contravention applications.
Item 50 - insert to subsection4(1)
1119. Item 50 moves to the definition provision in subsection4(1)the definition of ‘recovery order’ , which iscurrently in section67H. This is the interpretationprovision of SubdivisionC of Division8 about thelocation and recovery of children.
Item 51 - insert to subsection4(1)
1120. Item 51 moves to the definition provision in subsection4(1)the definition of ‘Registry Manager’ , which iscurrently in section67H. This is the interpretationprovision of SubdivisionC of Division8 about thelocation and recovery of children.
Item 52 - insert to subsection4(1)
1121. Item 52 moves to the definition provision in subsection4(1)the definition of ‘State’ , which is currently insection70B. This is the interpretation provision forSubdivisionB of Division13 of PartVII which isabout the registration of State and Territory orders aboutchildren.
Item 53 - insert to subsection4(1)
1122. Item 53 moves to the definition provision in subsection4(1)the definition of ‘step-parent ’ which iscurrently in section60D, which was where the defined termsfor PartVII used to be.
Item 54 -insertion of new subsection4(1AB) andsubsection4(1AC)
1123. Item 54 moves from subsection60D(2) and (3) the definition of‘member of family and relative ’ to the generaldefinition provision subsection4(1). These definitionsare relevant for the purpose of the definition of‘step-parent’ and the definition of ‘familyviolence’ which has also moved from section60D, thedefinition section in PartVII. The description of whois a member of a family or relative has not changed.
Item 55 - repeal of section60D
1124. Item 55 repeals section60D of PartVII. This isconsequential to moving all of the definitions in PartVIIinto the general definition section in subsection4(1) of theAct.
Item 56 - amendment to subsection65R(2)
1125. This item omits the reference to ‘subsection (1)’ insection 65R as a consequence of the repeal ofsubsection65R(2) by item 57. There will now be only onesubsection in section 65R. Subsection65R(2) is theinterpretation provision of SubdivisionD which deals withpeople who have been arrested in Division 6 related to parentingorders. It is repealed as a consequence of moving thedefinitions in the interpretation section to the general definitionprovision in subsection4(1) to assist in simplifyingcomprehensibility of the Act.
Item 57 - repeal of 65R(2)
1126. This item repeals subsection65R(2) which is theinterpretation provision of SubdivisionD of Division6of PartVII which deals with people who have been arrested forbreach of parenting orders. It is repealed as a consequenceof moving the definitions in the interpretation section to thegeneral definition provision in subsection4(1) to assist insimplifying comprehensibility of the Act.
Item 58 - repeal of 67H
1127. This item repeals section67H which is the interpretationprovision for SubdivisionC of Division8 ofPartVII. That subdivision deals with the location andrecovery of children. The repeal of this section is necessaryas a consequence of moving the definitions currently in theprovision to subsection4(1), the general definition provisionin the Act.
Item 59- repeal of 70B
1128. Item 59 repeals section70B which is the interpretationprovision for Division13A of PartVII. Thatdivision deals with the consequences of failure to comply withorders, and other obligations, that affect children. Therepeal of this section is necessary as a consequence of moving thedefinitions currently in the provision to subsection4(1), thegeneral definition provision in the Act.
Item 60 - repeal of70F
1129. Item 60 repeals section70F which is the interpretationprovision for SubdivisionC of Division13 ofPartVII. That subdivision relates to the registrationof overseas orders. The item is repealed as a consequence ofmoving the definitions in the provision to subsection4(1),the general definition provision in the Act.
Item 61 - amendment to definition ofAustralian child order
1130. Item 61 omits the reference to ‘section70B’ fromthe second paragraph of the definition of ‘Australian childorder’ which is in section70L. The definition of‘Australian child order’ currently includes a referenceto ‘a State child order as defined insection70B’. This amendment is a consequence ofthe definition of ‘State child order’ insection70B being moved to the general definition provision,subsection4(1) in the Act. Section70L is aboutthe relationship between Australian orders and registered overseasorders.
Item 62 - amendment to subsection92(1A)
1131. Item 62 removes the reference to the definitions in PartVIIfrom subsection92(1A) in PartIX of the Act. Thatsection provides that a person who has been required to submit atest for a parentage testing procedure can intervene in theproceedings for principal relief. The amendment is aconsequence of moving the definitions in PartVII tosubsection4(1), the general definition provision in theAct.
Item 63 - amendment to paragraph109A(1)(a)
1132. Item 63 removes the reference to the definition of ‘orderunder this Act affecting children’ in Division 13A of PartVII from paragraph 109A(1)(a) of the Act. Division13Aof Part VII provides for the consequences that arise fromcontravention of orders affecting children. The removal is aconsequence of the definitions about contravention applications inDivision13A being moved to the general definition section insubsection4(1) of the Act. Section109 relates tothe rules of court relating to enforcement in PartIII whichis about the enforcement of decrees.
Item 64- amendment to subsection 112AP(9)
1133. Item 64 removes the reference to the definition of ‘orderunder this Act affecting children’ in Division13A ofPart VII from subsection 112AP(9) of the Act.Division13A of Part VII provides for the consequences thatarise from contravention of orders affecting children. This is aconsequence of the definitions about contravention applications inDivision13A being moved to the general definition section insubsection4(1) of the Act. This cross reference is in adefinition in PartXIIIB of the Act about contempt ofcourt.
Part 2 - Savings
Item 65 - Definitions
1134. This item sets out the definitions of terms used in Part2,which deals with saving regulations made under the existingAct.
Item 66 - Saving ofregulations
1135. This item provides for the saving of regulations made under theexisting Act. It provides that even where a provision of theexisting Act (specified in the table) has been repealed,regulations that were made for the purposes of that provision, andwere in force immediately before the commencement of this Schedule,continue to have effect as if they had been made for the purposesof the corresponding provision of the new Act (also specified inthe table).
SCHEDULE 10- ORDERS OF NON-JUDICIAL OFFICERS OF STATE COURTS OF SUMMARYJURISDICTION
1136. Schedule 10 adds a new Part XIVB to the Act. This new part dealswith invalid orders made by officers of State courts of summaryjurisdiction, in the purported exercise of jurisdiction under theAct. The provisions do not attempt to validate the judgmentsin the kinds of proceedings in question, but create new statutoryrights and liabilities that may be exercised and enforced in thesame manner as valid judgments of the relevant court.
Item 1: At the end of subsection 39(6)
1137. Item 1 of Schedule 10 adds a note to the end of subsection 39(6) ofthe Act to clarify that the effect of section 39A of the Judiciary Act 1903 (the Judiciary Act) is that jurisdictionconferred on a State court of summary jurisdiction under subsection39(6) of the Act can only be exercised by certain officers of thosecourts. This jurisdiction cannot be exercised by non-judicialofficers such as registrars.
Item 2: At the end of subsection 69J(1)
1138. Item 2 of Schedule 10 adds a note to the end of subsection 69J(1)of the Act to clarify that the effect of section 39A of theJudiciary Act is that jurisdiction conferred on a State court ofsummary jurisdiction under subsection 69J(1) of that Act can onlybe exercised by certain officers of those courts. Thisjurisdiction cannot be exercised by non-judicial officers such asregistrars.
Item 3: After Part XIVA
1139. Item 3 of Schedule 10 adds a new Part XIVB to the Act, entitled‘Orders of
non-judicial officers of State courts of summaryjurisdiction’. Section 39A of the Judiciary Actprevents certain non-judicial officers of State courts of summaryjurisdiction (such as registrars) from exercising jurisdictionunder the Act. The provisions in the new Part deal withineffective orders made without power by officers of State courtsof summary jurisdiction, in the purported exercise of suchjurisdiction. The effect of the provisions is that the rightsand liabilities of persons affected by such an ineffective orderare to be the same as if such order had been made by the relevantcourt in the exercise of its jurisdiction under the Act.
Section 114MG: Definitions
1140. Section 114MG contains definitions of the terms used in PartXIVB. In particular:
· the definition of ‘federal family jurisdiction’ makesit clear that the Part only applies to orders purported to be madein relation to matters arising under the Act , and
· the definition of ‘non-judicial officer’ makes it clearthat the Part only applies to orders purported to be made byofficers of State courts of summary jurisdiction who are notofficers of the kind referred to in paragraph 39(2)(d) of theJudiciary Act. This definition will include (as well as otherofficers) registrars of State courts of summary jurisdiction.
Section 114MH: Meaning of ineffective order
1141. Section 114MH defines an ineffective order for the purposes of PartXIVB, as meaning an order made by a non-judicial officer of a Statecourt of summary jurisdiction in the exercise (or purportedexercise) of the court’s federal family jurisdiction, madebefore the commencement of the Part.
1142. Subsection114MH(3) provides that if there has been a purported variation etcto an ineffective order, a reference to that ineffective order inPart XIVB is to be interpreted as a reference to the content of theorder in the form it took from time to time. This ensures that anyvariations etc to an ineffective order are taken into account whendetermining the extent of a person’s rights and liabilitiesunder section 114MI.
Section114MI: Rights and liabilities declared in certaincases
1143. This sectioncreates rights and liabilities in relation to ineffectiveorders.
1144. It providesthat the rights and liabilities under an ineffective order are thesame as if the ineffective order had been a valid order of thecourt of summary jurisdiction in question. The purpose ofthis section is not for Parliament to validate such orders, but toprovide for the same consequences to flow from such orders as ifthey had been valid orders of the court in question. Thedeclaration of the rights and liabilities is limited to orders thatwould have been within the federal family jurisdiction of the courtin question.
Section114MJ: Effect of declared rights andliabilities
1145. This sectiondefines the effect of the rights and liabilities created undersection114MI.
1146. Subsection114MJ(1) provides that the statutory rights and liabilities createdby section 114MI may be exercised and enforced in the same way assimilar rights and liabilities arising under a valid order of thecourt of summary jurisdiction in question. Subsection114MJ(2) makes it clear that these rights include the right toappeal.
1147. Subsection114MJ(3) puts beyond doubt that a court can deal with failures tocomply with liabilities imposed by section 114MI in the same waythat it could deal with contraventions of orders of the relevantcourt under Division 13A of Part VII (which deals with orders thataffect children) or Division 2 of Part XIIIA (which deals withorders that do not affect children).
Section114MK: Effect of things done or omitted to be done under or inrelation to rights and liabilities
1148. This sectiondefines the effect of any acts done or omitted to be done inrelation to the rights and liabilities created under section114MI.
1149. Subsection114MK(1) ensures that acts done, or omitted to be done, in relationto the rights and liabilities specified in section 114MI haveeffect for the purposes of any laws in the same way as orders ofthe relevant court of summary jurisdiction. This may berelevant, for example, when ascertaining a person’sliabilities under other Commonwealth laws, such as taxation orbankruptcy.
1150. Subsection114MK(2) provides that, for the purposes of any laws relating tothe enforcement of orders (called enforcement laws and defined insubsection114MK(4)), acts done or omitted to be done inrelation to the rights and liabilities defined in section 114MIgive rise to the same consequences as if each ineffective orderwere a valid order of the relevant court.
1151. Subsection114MK(3) provides that the section does not apply where a personhas been convicted of an offence before the commencement of thePart for failing to comply with an ineffective order. Thissection does not validate such convictions.
1152. Subsection114MK(4) defines what an enforcement law is for the purposes ofthis section, and clarifies that it does not include contempt ofcourt, which is covered by section 114MM.
Section 114ML: Powers of courts in relation to declared rightsand liabilities
1153. This sectiondefines the powers of courts in relation to the rights andliabilities created under section 114MI.
1154. It givescourts the ability to deal with the statutory rights andliabilities created by section 114MI in the same way that theycould deal with similar rights and liabilities created by a validorder of the relevant court of summary jurisdiction. It alsoensures that courts can, in the circ*mstances specified inparagraph114ML(2)(b), make orders to achieve any other resultthat could have been achieved if an ineffective order of the courtof summary jurisdiction in question had been a valid order of thatcourt. This section would apply, for example, toappeals.
Section114MM: Proceedings for contempt
1155. This sectionfurther clarifies the power of courts in relation to the rights andliabilities created under section 114MI.
1156. It providesthat, where a person has interfered with a right conferred oraffected by section 114MI or failed to satisfy or comply with aliability conferred or affected by section 114MI, the interferenceor failure can be dealt with in the same manner as if it hadoccurred in relation to a right or liability arising under a validorder of the relevant court of summary jurisdiction. This,for example, would give the relevant court the ability to deal withsuch failures or interferences as contempt ofcourt.
Section 114MN:Evidence
1157. Sinceineffective orders are not valid orders of courts in federalproceedings, it is necessary to have a special evidence provisionrather than rely on the application of the Evidence Act1995 . This section therefore allows the court record ofan invalid order to be used as evidence in court proceedings toshow the existence and details of a person’s rights andliabilities created under section 114MI.
Section114MO: Part not to apply to certain orders
1158. This section ensures that this Part does not apply to anyorder of a court of summary jurisdiction that was declared invalidby that court or another court before the Part commences. Thispreserves any finding of invalidity that was in place before theseprovisions commence. It is not intended that this Part interferewith judicial findings of invalidity made before itscommencement.
Section 114MP: Jurisdiction of courts
1159. This section provides that the Family Court, the FederalMagistrates Court, the Family Court of Western Australia and eachState and Territory court of summary jurisdiction (within theirusual jurisdictional limits) are conferred with jurisdiction tohear matters arising under this Part.
