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Family Law Reform Bill 1994 [No.2]
House: House of Representatives
Commencement: Sections 1, 2 and 54 commence on the date of Royal Assent. The remaining provisions commence on a date or dates to be fixed by Proclamation but not later than the first day after the expiry of 12 months from the date of Royal Assent.
Australian Institute of Family Studies
Counselling and Mediation Organisations
Primary Dispute Resolution
Children artificial conception procedures
Child maintenance orders
Best interests of children
Separate representation of children
Presumptions of Parentage
Convention of the Civil Aspects of Child Abduction
Australian Institute of Family Studies
Separate Representation of Children
To make certain amendments to the Family Law Act 1975 (Cwlth) (the Principal Act) as a first stage in implementing the Government's response to the Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act.
Since the Principal Act was introduced in 1975, there have been a number of inquiries into family law and considerable controversy about the operation of the legislation. The most recent major inquiry is that of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act. The Joint Select Committee was established in March 1991 to undertake a comprehensive review of the Act. The Committee's report, containing 120 recommendations, was tabled in Parliament on 24 November 1992.
As part of the Government's response to the Joint Select Committee Report, the Attorney-General asked the Family Law Council to examine the (UK) Children Act 1989 in order to give advice on that Act and its approach to guardianship, custody and access. 1 Late in 1993, the Attorney-General presented Directions for Amendment, the Government's response to the Joint Select Committee's recommendations. The Family Law Council's advice was published in March 1994. On 30 June 1994, the Government introduced a Family Law Reform Bill (called here Family Law Reform Bill 1994 [No.1]) into the House of Representatives. This Bill was discharged from the Notice Paper on 12 November 1994. The Family Law Reform Bill 1994 [No.2] (the Bill) was introduced into the House of Representatives on 13 November 1994.
Referring to the re-working of the legislation, the Parliamentary Secretary to the Attorney-General remarked that public comment was received on the Bill and consultations conducted with the Family Court of Australia, the Family Court of Western Australia and the Family Law Section of the Law Council of Australia. 2
The Family Law Reform Bill 1994 [No.2] begins the process of implementing the Government's response to the Joint Select Committee report. It also adopts recommendations from the Family Law Council's report. It is expected that a further Bill dealing with matrimonial property, the recognition of pre-marital property agreements and enforcement will be introduced. 3
Among other things, the Family Law Reform Bill 1994 [No.2] introduces provisions dealing with family violence and family violence orders, removes references to 'guardianship' and contains transitional provisions. It also omits provision for 'parenting agreements' found in Family Law Reform Bill 1994 [No.1] but retains provisions for parenting plans.
Concerns have been expressed for some time about the adversarial nature of proceedings in the Family Court and their consequences - for the court system, the parties and the children of the parties. The Bill incorporates provisions designed to strengthen and facilitate the role that counselling and mediation can play in family law disputes.
When the Principal Act was introduced it envisaged the creation of a simple, inexpensive system that would not inquire into the reasons for marital breakdown or apportion blame. However:
Today the system is complex, costly and focuses too narrowly on traditional litigation . . . currently 5 per cent of applications other than simply for divorce go to trial. 4
According to the Attorney-General, the Bill will lead to a progressive shift which will move the focus of family law further away from a litigious to a non-adversarial system. 5
It is generally accepted that counselling services fulfil an important role in family law matters. In 1986, the Australian Institute of Family Studies evaluated the effectiveness of marriage counselling. This study found a high satisfaction rate among those who had used marriage counselling to improve their relationship or prevent its breakdown. In addition, the study found that 'very few couples who attended marriage counselling, and subsequently separated, had used lawyers or entered the litigation process.' 6
The study concluded that:
. . . public funding of approved marriage counselling organisations is a "very inexpensive way of reducing later costs in litigation, social security benefits and personal and social consequences" . . . funding of marriage counselling results in annual cost-saving to government of around $47.5m in terms of funding for Family Law Courts, Legal Aid and Supporting Parents Benefits. 7
However, lack of resources for counselling has been a problem. Long waiting lists exist which may diminish the effectiveness of counselling when it finally does occur. 8 There are many organisations currently not in receipt of government funding which carry out marriage counselling as part of their services. At present, the criteria for funding of marriage counselling in the Family Law Act is that the organisation must have as its entire or major function, the carrying out of marriage counselling.
The Bill makes eligible for government funding, voluntary organisations which provide family and child counselling services and whose entire or substantial purpose is family and child counselling. The rationale for this change is that it will enable organisations 'to engage in non family law counselling without jeopardising approval under the Family Law Act.' 9 Consequently, it should also improve the availability of counselling services.
The role of mediation is expanded by the Bill and approved mediation organisations are given access to Government funding. The benefits of mediation are said to be that it is ' . . . quick, inexpensive, confidential, and non-confrontational.' 10 Like other forms of alternative dispute resolution it is designed to produce 'an agreed outcome, which is likely to be more acceptable to the parties, therefore likely to attract greater compliance and a resultant decline in litigation and recourse to the courts.' 11
The Courts (Mediation and Arbitration) Act 1991 inserted Division IIIA dealing with mediation and arbitration into the Family Law Act 1975. A pilot mediation program was established in the Melbourne Registry of the Family Court in January 1992. There is now a mediation unit in the Sydney Registry. It is expected that a mediation unit will be established in the Family Court in Brisbane in 1995-96. 12
An evaluation of the Family Court Mediation Service was published in March 1994. It concluded that:
. . . voluntary, comprehensive mediation, when provided by trained mediators familiar with family law and the personal dynamics of the separation process can be effective in resolving a wide variety of disputes in a lasting manner and to the satisfaction of clients . . . the vast majority of clients [who used mediation] did not require judicial intervention and went on to generate consent orders. Mediation also appeared to improve the post-separation climate and encouraged a more harmonious communication between ex-spouses. 13
At present, Family Court mediation is conducted by 'approved mediators' - these are persons approved by the Chief Justice of the Family Court. 'In practice, this statutory scheme for mediation has meant that only court mediation is approved under the Family Law Act. Other mediation does not attract the protection and immunities provided under the Act because they are not approved.' 14
Mediation in the Family Court is available both to parties who are not involved in court proceedings and to those who have commenced proceedings but elect to adjourn them while attempting to reach a settlement through mediation. Mediation can be employed in property and in children's matters. 'Mediators are facilitators of a co-operative decision making process.' 15 Mediation provided in the Family Court at present is conducted using a co-mediation model. Co-mediation involves mediators of both sexes and multidisciplinary qualifications. A number of steps are involved. These include the initial inquiry, an information/education session, individual intake interview, joint pre-mediation interview and a mediation session or sessions.
The Bill will retain the court mediation system but expand the categories of people who can provide mediation in family law matters. These include court mediators (equivalent to an approved mediator under the regulations), people authorised by an approved mediation organisation (also called community mediators) and private mediators (people who offer mediation in accordance with the regulations). The Bill provides that any admissions made to a mediator or evidence of anything said to a mediator will not be admissible in a court. The protections and immunities at present provided to court mediators will be extended to community and other mediators.
Terminology /Statistical Information
The Australian Institute of Family Studies estimates that one in every three marriages will end in divorce. 16 In 1993, 48,055 children under the age of 18 were involved in divorces in Australia. 17 Some 52.9 per cent of decrees absolute in Australia during 1992 affected children. In 1992-93, there were 15,485 custody/guardianship applications before the Family Court and 14,971 access applications. While property matters formed the largest single category of orders sought from the Family Court in 1992-93, matters relating to children (custody/guardianship, access and child support) constituted 43.8 per cent of all orders sought. 18
Some take the view that the language employed in relation to children in the Principal Act, encourages adversarial proceedings. Concern has also been expressed that terms such as custody and access perpetuate the idea of children as property. 19 The Joint Select Committee commented that the expression 'custody' was associated with imprisonment. 20 'Access' has been associated with ideas of ownership: it is a term which 'describes the right to enter or pass over adjoining land without hindrance. For a mother or father, the term "access" is an especially disempowering one.' 21
The Family Law Council has taken the view that expressions such as custody and access are associated with winning and losing by the parties to proceedings. 22
The Bill addresses questions of terminology. In Patterns of Parenting After Separation, the Family Law Council noted that the language of family law is drawn from criminal and property law. In particular, it is based on 19th century concepts of ownership of the family by the father. 23
In Patterns of Parenting After Separation, the Family Law Council briefly reviewed research studies on terminology and post-separation parenting. It concluded that cooperative parenting after separation would be facilitated if the language of family law did not carry overtones of ownership of children. 24
The Family Law Council's Letter of Advice to the Attorney-General on the Operation of the (UK) Children's Act 1989 remarked that while no formal evaluations have been done on the effect of changes to statutory language in the United Kingdom, anecdotal evidence suggests that the parties in family law proceedings find the new terminology (largely employed by the drafters of the Family Law Reform Bill) less adversarial, more meaningful and more realistic. The new language was recently endorsed by the Chief Justice of the Family Court of Australia at the Sixth National Family Law Conference held in October 1994. 25
The Bill replaces the concepts of 'custody' and 'access'. It also introduces the concept of 'parental responsibility' and 'parenting plans'. However, not all commentators agree that changes in terminology will necessarily reduce disputes between parents or promote the best interests of the child. The Joint Select Committee examined this issue and stated that it did not have 'a firm view about what terminology is used, and would need further evidence placed before it to be convinced that the terminology of custody and access has a significant effect on the behaviour of parents following separation.' 26 It advocated a proper examination of proposed changes to language before legislative amendments were made and it flagged 'the potential for problems unless amendments are undertaken jointly between the Commonwealth and the States.' 27
The Joint Select Committee cited a submission by Mr Justice Joske 28 in which he argued that in the absence of demonstrated benefits flowing from a change in terminology, no change should occur because of the possibility that it would create confusions in enforcement both nationally and under the Hague Convention on Civil Aspects of International Child Abduction. The language of the Convention is that of 'custody' and 'access'. His Honour also took the view that:
* parents are normally possessive about their children and such attitudes will not be affected by changes in terminology; and
* confusion about custody and guardianship arise in the community as a result of what these terms are perceived to mean in fact rather than as the result of legal labels. 29
Some submissions to the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act were critical of guardianship:
Submissions argued that guardianship was irrelevant and despite being a legal guardian, in practice their involvement in decision-making concerning their children was insufficient or non-existent. 30
The Chief Justice of the Family Court stated in oral evidence to the Joint Select Committee that:
My concern is that I do not think many people understand what guardianship means and the Act does not say. All it talks about is all the powers, all the attributes that normally do with guardianship. The person in the street I do not think understands what that means. I am quite sure a lot of lawyers do not understand it either. 31
The Joint Select Committee recommended that the concept of guardianship be retained in the Family Law Act but more clearly defined. However, the Bill largely dispenses with the terminology of guardianship.
Family violence is a serious problem in Australia - in both attitudinal and behavioural terms. In late 1987, the Public Policy Research Centre conducted a survey of community attitudes to domestic violence. The survey revealed that one-third of respondents believed family violence to be a private matter that should be addressed within the family. In addition, 19 per cent of respondents believed that physical violence against a wife could be justified in some circumstances. 32
Assessments of the incidence of family violence and the effectiveness of prevention strategies are difficult because family violence often remains unobserved and unreported. Straus extrapolated results from a 1985 study into domestic violence in the United States to Australia and estimated that during 1984 about 16 per cent of Australian couples would have experienced some form of family violence and that about 6 per cent would have experienced severe violence. 33
Work by Alison Wallace in New South Wales which examined homicides between 1968 and 1981 showed that 42.5 per cent of homicide victims were killed by a family member and a further 6.8 per cent of victims were killed by someone with whom they had had a sexual relationship. Only 18 per cent of homicides involving killing by strangers. 34
Where family violence occurs, it may be witnessed by the children of the relationship. Some 90 per cent of callers to a phone-in conducted by the Queensland Domestic Violence Task Force reported that children had witnessed incidents of domestic violence. 35 The effects on such children can be seriously damaging. Where spouse abuse occurs in a household, child abuse may also be present. Once again, the Queensland Domestic Violence Task Force reported that 68 per cent of their respondents reported that their children had suffered abuse from the perpetrator of the spousal abuse.
Concerns about the extent and nature of family violence and concerns about the ineffectiveness of existing remedies prompted the States and Territories to enact domestic violence legislation. Between 1982 and 1989, all jurisdictions enacted legislation dealing with family violence. These statutes provide for what are variously called intervention orders, protection orders, restraining orders and apprehended violence orders (the terminology in the Bill is 'family violence orders'). In general, such orders may be sought by the police, family members and, in some states, by any member of the community. These orders may contain conditions deemed necessary by the court to restrain the defendant's conduct. Penalties, including imprisonment, are provided for a defendant who breaches an order.
Remedies are also available under the Family Law Act 1975, and enable an abused woman to obtain an injunction or a restraining order from either the Family Court or from a Magistrates Court.
There are advantages and disadvantages of State and Territory protection orders on the one hand, and Family Court orders and injunctions, on the other. However, commentators such as Seddon argue that, overall, State and Territory protection orders are more useful:
The procedure for obtaining protection orders is quicker and cheaper than Family Court injunctions and, most importantly, the enforcement regime is far more effective than for ... breaches of Family Court injunctions ... a breach of an order attracts arrest and a criminal prosecution. 36
Although it appears that protection orders are more useful for victims of domestic violence, difficulties may arise if one party has a State or Territory protection order and the other party has a Family Court access order and the orders have conflicting terms.
In July 1994, the Standing Committee of Attorneys-General agreed that the Commonwealth should draft legislation to give State and Territory courts the power to vary Family Court access orders in situations where domestic violence is present. According to a press release issued by the Commonwealth and Queensland Attorneys-General:
At present, where an access order is inconsistent with a domestic violence order, for example by allowing a restrained person to come to the home, the Family Court order prevails under Section 109 of the Constitution which gives Commonwealth law precedence over State or Territory law. 37
Another concern about family violence occurs in the context of the making of custody and access orders. Currently, the Family Law Act 1975 provides in sub-paragraph 64(1)(bb)(va) 38 that in custodial proceedings the court shall take into account:
the need to protect the child from abuse, ill treatment, or exposure or subjection to behaviour which psychologically harms the child.
This provision is a narrow one. In October 1994, the Chief Justice of the Family Court recommended that the Family Law Act 1975 be further amended:
to specifically provide that the Court may take into account violence against another person which physically or psychologically harms the child. 39
Australian Institute of Family Studies
The Australian Institute of Family Studies (AIFS) was established under the Family Law Act 1975 (Part XIVA). Its functions include conducting, encouraging and disseminating research on factors affecting marital and family stability in Australia.
Amendments contained in the Bill relate to the employment of staff of the AIFS and the position of the Institute's Director.
The great majority of the Bill's provisions will commence on a date or dates fixed by Proclamation [ clause 2]. However, if 12 months from the date of Royal Assent have expired then any provisions not then proclaimed will automatically commence. The rationale is that time is needed (and that the time provided for is sufficient) for changes to be made to regulations, to the Rules of the Family Court, and to a number of related statutes, following passage of the Bill. An educative process for the community and for practitioners will also be necessary.
Clause 3 amends the long title of the Principal Act. The long title reads:
An Act relating to Marriage and to Divorce and Matrimonial Causes and, in relation thereto and otherwise, Parental Rights and the Custody and Guardianship of Infants, and Certain Other Matters.
Clause 3 omits the words 'Parental Rights and the Custody and Guardianship of Children' and substitutes 'Parental Responsibility for Children'.
Counselling Organisations and Mediation Organisations
Clause 5 repeals Part II of the Principal Act and inserts New Part II which deals with counselling and mediation organisations.
In particular, New Part II:
* provides for counselling organisations and mediation organisations to be approved by the Minister. The Minister may also approve organisations as both counselling and mediation organisations [ proposed section 13].
* provides that a voluntary organisation may be designated by the Minister as an approved counselling organisation if it is willing and able to engage in family and child counselling and the whole or a substantial part of its activities consist or will consist of family and child counselling [ proposed section 13A]. Parallel provisions are found in proposed section 13B for mediation organisations. The definition of approved counselling organisation in the Principal Act is an organisation where the whole or the major part of its activities involve marriage counselling [subsection 12(2) of the Principal Act];
* provides that such approvals may be revoked by the Minister in certain circumstances [ proposed section 13D].
* provides for financial assistance for approved mediation organisations [ proposed section 13H]. Approved counselling organisations are also eligible for financial assistance.
The Minister must publish annually lists of approved counselling organisations and approved mediation organisations [ proposed section 13E].
Primary Dispute Resolution
Clauses 6 and 7 of the Bill amend the heading of Part III, repeal section 14 of the Principal Act and insert new sections.
In the Principal Act, Part III is headed 'Counselling and Reconciliation'. The new heading for Part III - Primary Dispute Resolution - and the provisions of the Part are intended to emphasise that counselling, mediation and arbitration are the primary dispute resolution mechanisms in family law matters, rather than court-imposed solutions.
In a recent speech, the Parliamentary Secretary to the Attorney-General said:
The use of the word "primary" rather than "alternative" was selected for two reasons. Firstly, because these types of dispute resolution are often not seen as true alternatives to the more traditional court imposed decision. . . . The second reasons for choosing the word "primary' was to give every encouragement to use mediation and counselling as the first port of call. These forms of dispute resolution offer greater scope for dealing with issues more completely. Parties invest themselves in the process, making it more likely that they will stick to the outcome. 40
Proposed sections 14F and 14G impose a duty on courts and legal practitioners to consider advising parties about primary dispute resolution methods.
New Subdivision A of Part IIIA, Division 5 expands the scope for mediation in family law matters. In particular, clause 17 inserts proposed section 19BA into the Act. Proposed section 19BA enables a court to advise the parties to proceedings to consult a family and child mediator. A court may also refer a party to a court mediator [ clause 16].
A family and child mediator is defined in subclause 4(f) as:
* a person approved as a mediator under the regulations (a court mediator);
* a person authorised by an approved mediation organisation to offer family and child mediation (a community mediator); or
* a person, other than a person mentioned above, who offers family and child mediation (a private mediator).
Clause 22 amends section 19J of the Principal Act by providing that the court, on request, should inform the parties not only about mediation or arbitration facilities available in the court, but also about mediation services provided by approved mediation organisations.
Clause 23 inserts new section 19JA which provides that an approved mediation organisation can advertise its services at a Registry of the Family Court.
Clause 25 amends section 19M of the Principal Act by providing family and child mediators with the protection and immunities available to a Judge of the Family Court when performing his or her judicial functions.
Proposed section 19N provides that admissions made to certain persons, including a family and child counsellor, a court mediator, a community mediator or a private mediator are not admissible in any court.
Proposed section 19P provides that regulations may be made which prescribe requirements to be complied with by community mediators and by private mediators in relation to the family and child mediation services which they provide. The regulations may prescribe penalties for breaches of those requirements.
New section 60B sets out the objects and principles of new Part VII (Children). The object of new Part VII is to ensure that children 'receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children' [ subsection 60B(1)].
New subsection 60B(2) provides that the principles underlying that object are :
* the right to know and be cared for by both parents;
* the right to regular contact with parents and other significant people;
* the sharing of duties and responsibilities by parents;
* parental agreement about future parenting.
Definitions are set out in proposed section 60D. These definitions provisions contain some differences from those found in Family Law Reform Bill 1994 [No.1]. For example, they include definitions of 'family violence' and 'family violence order.' They also include definitions of 'member of the family' and 'relative'.
'Family violence' is defined in proposed subsection 60D(1) as:
... conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family to fear for, or be apprehensive about, his or her personal well being or safety.
For the purposes of proposed section 60D and proposed paragraphs 68F(2)(h) and (i), and proposed section 68J, family members include current or former spouses or de facto spouses, relatives, and persons with residence, contact, special purpose, guardianship or access orders.
A 'relative' is defined in proposed subsection 68F(3), with the term including a wide range of current and former members of a person's immediate or extended family (or de facto family).
Children Born as a Result of Artificial Conception Procedures
New section 60H re-enacts section 60B of the Principal Act. It deals with the parentage of children born as a result of artificial conception procedures.
Research studies and inquiries conducted by the Family Law Council show that, in general, contact with both parents is wanted by children and beneficial to their long-term development, educational achievement and self-esteem. Research also shows that the majority of non-custodial parents lose contact with their children over time. 41
In addition to removing concepts such as 'custody', 'access' and 'guardianship', the Bill introduces the concept of 'parental responsibility'. This concept is borrowed from the United Kingdom Children's Act 1989. One purpose of its inclusion in the Bill is to emphasise that both parents continue to retain their parental responsibilities after separation. It is intended that this concept will encourage parents to recognise their own continuing responsibilities and those of their former spouses for the care of their children.
Proposed sections 61B - 61D deal with parental responsibility. Importantly, the concept of 'parental responsibility' does not include references to parental rights. New section 61B defines 'parental responsibility' in relation to a child as 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.'
Proposed section 61C provides that the parents of a minor have 'parental responsibility' for that child, notwithstanding any change in their own relationship - such as separation or re-marriage (unless altered by court order).
The intention behind parenting plans is to encourage consensual agreements between parents and minimise recourse to court imposed solutions.
Proposed sections 63A - 63G explain the nature of parenting plans and the effect of registering such plans.
Proposed section 63B encourages parents to agree about matters concerning their children rather than to seek a court imposed solution, and to regard the best interests of their children as the paramount consideration when making such agreements.
Proposed section 63C defines a 'parenting plan'. 'Parenting plans' are written agreements between the parents of a child which may set out intentions about such matters as where the child is to live, contact between the child and another person, maintenance of the child or any other aspect of parental responsibility. The first two matters and the last matter are called 'child welfare provisions' [ proposed subsection 63C(4)]. Provisions dealing with child maintenance are called 'child maintenance provisions' [ proposed subsection 63C(5)].
A parenting plan may be registered in a court with jurisdiction under Part VII of the Act [ proposed section 63D].
The Bill provides that:
* the court may vary the child welfare provisions of a parenting plan if it considers the variation to be necessary in the best interests of the child [ proposed subsection 63E(2)];
* with specified exceptions, the child welfare provisions of a registered parenting plan have effect as though they were court orders [ proposed subsection 63E(3)]. One exception is where the court considers enforcement of the child welfare provisions not to be in the best interests of a child [ proposed subsection 63E(5)].
* where a child maintenance provision of a registered parenting plan is not enforceable as a maintenance agreement, it may have effect as if it were a child maintenance order [ proposed subsections 63F(2), 63F(3), 63F(4) and 63F(5)].
The terms custody, access and guardianship are removed.
New section 64B defines parenting orders as orders which may deal with matters such as with whom the child is to live, child maintenance and contact between the child and others, and any other aspect of parental responsibility.
A 'parenting order' is an umbrella term which covers the following:
* residence orders proposed paragraph 64B(2)(a) deals with where a child is to live. A residence order is similar to a custody order under the Principal Act.
* contact orders proposed paragraph 64B(2)(b) deals with orders for contact between a child and another person or persons. A contact order is similar to an access order under the Principal Act.
* child maintenance orders proposed paragraph 64B(2)(c) deals with the maintenance of a child.
* special purpose orders proposed paragraph 64B(6) deals with orders covering any other aspect of parental responsibility. An example would be an order for medical treatment. A special purpose order can also confer on a person or persons, responsibility for the long-term or day-to-day care, welfare and development of a child.
Proposed section 65C provides that among those who can apply for a parenting order are either or both of the child's parents, or any other person concerned with the care, welfare or development of the child. The child may also apply.
In determining whether to make a parenting order, other than an order by consent, the court must look to the best interests of the child as the paramount consideration [ proposed section 65E].
Proposed section 65K provides that a court may, in the best interests of the child, make orders requiring a family and child counsellor or welfare officer to supervise the carrying out of, or give assistance to achieve compliance with, a parenting order. Once again, the court must look to the best interests of the child when deciding to make such an order - except where the order is by consent.
Proposed sections 65R-65T specify obligations that are created by residence orders, contact orders and special purpose orders.
Child Maintenance Orders
New Division 7 re-enacts Division 6 of Part VII of the Principal Act (Maintenance of Children).
Under proposed section 66L the circumstances in which a child maintenance order can be made when a child is over the age of 18 are set out. Child maintenance orders come to an end in certain circumstances - when a child turns 18 (save in the circumstances set out in new section 66L) [ proposed section 66T]; on the death of the child [ proposed section 66U]; and on the child's adoption or marriage, or when the child enters into a de facto relationship [ proposed section 66V].
Subsection 66M(4) is the equivalent section of the Principal Act. It does not cover de facto relationships. Proposed section 66V includes de facto relationships in order to comply with the Sex Discrimination Act 1984 (Cwlth). Included in the definition of 'marital status' in that Act is the status or condition of being 'the de facto spouse of another person'. The court may make a declaration that a child is in a de facto relationship [ proposed subsection 66V(4)]. Such a declaration has effect for the purposes of the Family Law Act but not for any other Commonwealth law or any law of a State or Territory.
Proposed sections 67Z, 67ZA and 67ZB largely re-enact sections 70BA, 70BB and 70BC of the Principal Act. However, proposed section 67ZA extends mandatory notification of suspected child abuse to family and child counsellors and family and child mediators. Section 70BB of the Principal Act placed the duty of notification on members of court personnel only.
Protection from liability arising from notification is extended by proposed section 67ZB to family and child counsellors and mediators, as well as members of court personnel.
The Best Interests of Child ren
New Division 10 deals with the best interests of the child and with separate representation for children. The Division applies in any proceedings under Part VII (Children) where the best interests of the child are the paramount or a relevant consideration. It also applies in proceedings relating to a child where a family violence order is being considered or in certain proceedings relating to parenting plans.
Subsection 64(1) of the Principal Act provides that the court must regard 'the welfare of the child as the paramount consideration. Proposed section 68F replaces this language with that of the 'best interests of the child'.
The expression 'the best interests of the child' was introduced for a number of reasons, including:
* the connotations of the term 'welfare'; and
* a preference for the expression 'best interests of the child' as more meaningful;
There is also a significant difference between Family Law Reform Bill 1994 [No.1] and the current Bill in relation how a court is to determine the best interests of the child. The current Bill provides a number of detailed provisions concerning family violence.
Proposed subsection 68F(1) provides that the court must consider the matters contained in proposed subsection 68F(2) in determining what is in the child's best interests. These matters include:
* the need to protect the child from physical or psychological harm resulting from abuse, ill-treatment, violence or other behaviour;
* the need to protect the child from physical or psychological harm resulting from being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour;
* any family violence involving the child or a member of the child's family;
* any family violence order that applies to the child or a member of the child's family.
The present Bill also re-introduces the requirement that the court have regard to 'the capacity of each parent, or any other person, to provide for the needs of the child, including emotional and intellectual needs' [ proposed paragraph 68F(2)(d)]. This requirement is contained in the Principal Act [sub-paragraph 64(1)(bb)(v)] but was omitted from the Family Law Reform Bill 1994 [No.1].
The Family Law Reform Bill 1991 [No.1] merely referred to parental attitudes [referred to in proposed paragraph 68F(2)(g) of the current Bill] not to parental capacity. While parental attitudes may be an important component when determining the best interests of the child, it may also be important for the court to make an assessment of the capacity of the parent to provide adequately for the child's needs.
Proposed section 68G deals with how the court can inform itself of the child's wishes. It can, for example, refer to a report of a family and child counsellor or welfare officer, or use other means that it considers appropriate.
Proposed section 68H provides that nothing in Part VII of the Act (Children) permits a court or any person to require a child to express his or her wishes on any matter.
Proposed section 68J provides that if a party to proceedings knows that a family violence order applies to a child or a member of the child's family, the party must inform the court of the family violence order. However, failure to inform the court of the family violence order does not affect the validity of any order made by the court [ proposed subsection 68J(3)].
Proposed section 68K provides that 'to the extent to which it is possible to do so consistently with the child's best interests being the paramount consideration', the court should avoid making an order which is inconsistent with a family violence order or which exposes a person to family violence.
Separate Representation of Children
Under proposed section 68L a court may make an order for separate representation of a child on its own initiative, or on the application of the child, a child welfare body or any other person. Proposed section 68L largely re-enacts section 65 of the Principal Act.
New Division 11 deals with the relationship between certain contact orders and family violence orders.
A 'family violence order' is defined in proposed section 60D as 'an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence.'
The aims of new Division 11 are set out in proposed section 68Q. In brief, these are to:
* resolve inconsistencies between certain contact orders and family violence orders;
* ensure that certain contact orders do not expose people to family violence; and
* respect children's rights to have regular contact with both parents.
New Division 11 creates two categories of contact order. A Division 11 contact order includes contact orders, other instruments and orders, and undertakings to the extent that they authorise contact between another person(s). A section 68R contact order includes contact orders and other instruments and orders. However, a section 68R contact order does not include undertakings, recognisances or things not considered to be court orders.
Proposed section 68R provides that where a court makes a contact order (a section 68R contact order) that is inconsistent with a family violence order, an explanation of the purpose of the order, the obligations it contains, the consequences of its breach etc are to be explained to certain affected persons. These persons include the applicant and respondent to the proceedings for the section 68R contact order and the person against whom the order is made.
Proposed subsection 68R(4) provides that the court must supply copies of the contact order to the parties, the person against whom the family violence order was made (if that person is neither the applicant nor the respondent) and the Registrar of the Court which last made or varied the family violence order. It also provides that the court must include in the contact order a detailed explanation of how the contact is to occur.
Proposed subsection 68S provides that a section 68R contact order prevails over a family violence order to the extent of any inconsistency. The court may make a declaration regarding the extent of the inconsistency.
Proposed section 68T provides that, in specified certain circumstances, a court with jurisdiction under Part VII of the Family Law Act 1975 which makes or varies a family violence order may make, revive, vary, discharge or suspend a Division 11 contact order. In this way, a relevant State or Territory court can act to change a contact order where family violence exists.
Presumptions of Parentage
Proposed sections 69P-69V provide for presumptions of parentage.
Proposed section 69T re-enacts section 66T of the Principal Act and provides that a presumption of paternity arises where a man has executed an instrument acknowledging that he is the father of a child.
The Child Support Legislation Amendment Bill 1994 also provides for a presumption of maternity to arise where a woman executes a similar instrument. Acknowledgments of maternity provisions may also be found in equality of status legislation in Australian jurisdictions. Is a similar provision needed in the Family Law Act?
Convention on the Civil Aspects of Child Abduction
Some concerns have been expressed about changes in terminology in the Family Law Act 1975 and enforcement under the Convention on the Civil Aspects of Child Abduction.
Clause 42 amends section 111B of the Principal Act with the aim of resolving doubts about the implications of changes for the Convention of changes in the language of custody and access.
Australian Institute of Family Studies
Proposed section 114M provides that staff of the Australian Institute of Family Studies are to be persons appointed or employed under the Public Service Act 1922.
Proposed section 114M also provides that the Director of the AIFS has all the powers of a Secretary under the Public Service Act 1922.
Transitional arrangements relating to the repeal and rewording of Part II (Counselling Organisations and Mediation Organisations) and to the repeal and rewording of Part VII (Children) are dealt with in Schedules 1 and 2 respectively.
The Bill attempts to encourage attitudinal and behavioural change in parents facing separation and divorce. It may also assist in promoting changes among practitioners, in the court system and in the wider community. The Bill attempts to move the focus further away from adversarial proceedings and to promote the best interests of children rather than ownership rights for parents.
While it is clear that mediation, counselling and arbitration are inexpensive can be a productive dispute resolution mechanisms, they must be appropriately used by the court system and practitioners. They will not be useful and, indeed, may be counterproductive, in some situations. In such circumstances, other dispute resolution mechanisms and even formal legal processes may be more appropriate. In addition, these services must be adequately promoted and their different applications made clear. There is a role for Commonwealth funding for community, judicial and practitioner education about dispute resolution mechanisms in family law.
Similarly, a change in the language of the Family Law Act is an important signal to the community but will not alone produce attitudinal or behavioural changes. Once again, there is a role for Commonwealth funding of community, judicial and practitioner education to explain and promote these changes. This role has been recognised by the referral of relevant powers by the States.
The 1994-95 budget provided for $0.714 million for court-based mediation and $1.313 million in 1995-96 and subsequent years. Community organisations were provided with $0.5 million for community organisations providing mediation and $0.7 million in 1995-96 and subsequent years. It is important that 'primary dispute resolution' services are properly funded.
One of the criticisms that has been made about court-based mediation is that it will merely be seen by the public as another arm of the legal system. 'If people are disenchanted with the law and its institutions they may prefer not to have anything to do with them even in this non-confrontationalist way.' 42 The provisions contained in the Family Law Reform Bill 1994 [No.2] provide an alternative to court-based mediation.
While mediation has many potential benefits, there may also be problems associated with its use. The Family Law Rules themselves recognise a number of factors that may affect the power balance between parties and thus their ability to negotiate as equals. These include: alcohol and drug abuse, debilitating psychiatric disorders, overwhelming emotions resulting from separation, a history of broken agreements, family violence, the continuing dominance of one partner and child sexual abuse. 43
The recent evaluation of Family Court mediation concluded that while mediation was useful in complex as well as simple cases:
. . . couples who enter the mediation process with considerable problems in communication, dominance, threat of violence and a history of broken arrangements, have a significantly reduced chance of a successful outcome. 44
The factor that has received particular attention is family violence. Family violence makes mediation inappropriate because:
* it creates and reflects extreme imbalance of power between the parties;
* it places an extreme burden on a victim who has been subjected to violence;
* the victim may not be expressing their free will and may be coerced into a settlement at mediation by an offender;
* it may endanger the victim;
* if the family violence amounts to criminal behaviour, then it should be dealt with by the courts. 45
It has also been said that the use of mediation in situations of family violence may perpetuate the privatisation of such violence:
Mediation is a private and confidential process. If a large number of family disputes go to mediation it is inevitable that a large number of disputes involving violence will go to mediation. If mediation becomes a frequently used alternative to the courts there is a danger that violence will return to the private sphere . . . If violence against women is thus made invisible it is likely to be dropped from the political agenda. 46
It is arguable that mediation should not be permitted in cases where family violence has occurred or is present. On the other hand it has been said that:
The patterns of power relationships are quite complex and it is the skilled mediator who can recognise and deal with them. But we also have to ask ourselves what the alternative is. Is it better to have the interests of parties taken care of by lawyers who also do not have equal negotiating abilities. 47
Options to consider might include legislating to exclude or limit the use of mediation where family violence is involved. In the United States, for example, in those jurisdictions where courts can refer parties to mediation in family proceedings, exceptions may be created in cases involving family violence. In some states, the exclusion is mandatory, in others it is discretionary.
There have also been suggestions that if mediation is to be used in cases involving family violence, then only the most experienced mediators should be involved. The National Committee on Violence Against Women suggests that the co-mediation model is likely to be the most effective one in such cases. 48
Finally, reference should be made to standards for mediation, training for mediators and evaluation of mediation services. Mediation is a new profession. The Family Law Council issued a report on Family Mediation in 1992 which emphasised the need to establish ethics and standards of practice for mediators. It supported the establishment, through government funding, of a federation of mediation service providers to promote uniform standards at a national level. It also recommended that the government fund the evaluation of both Family Court based mediation services and government-funded mediation services operating outside the Family Court. 49
Consent Orders and the Best Interests of the Child
In certain circumstances, for example when making a parenting order by consent, the court is not obliged to look to the best interests of the child as the paramount consideration [see proposed section 65C].
The Family Law Reform Bill 1992 [No.2] has removed the language of parental rights and seeks to emphasise parental responsibility and the best interests of children. It is arguable that the exception created when consent orders are made indicates that parental rights, rather than the child's best interests, may continue to be influential in family law proceedings.
Separate Representation of Children
There has been some debate over the appointment, role and function of the separate representative. In December 1993, a Child's Representatives Committee of the Family Law Council was established to examine the role of the child's representative. It is anticipated that the Committee will report to the Attorney-General in 1994-95.
Further discussion about representation for children is certainly needed. The United Nations Convention on the Rights of the Child requires Australia to make provision for children to be heard. A separate representative is one way of doing this.
Consideration might also be given to direct representation of children who 'wish to be heard and put submissions to the Court.' 50 Direct representation also raises the issues of children's evidence. While children can give such evidence at present with the consent of the court, in practice, the court discourages such direct involvement of children. This is because the proceedings are adversarial, and the court has traditionally seen its role as preserving and fostering ongoing relationships between the child and both its parents. It may be appropriate for this approach to be reviewed - especially with the advent of technological advances such as videolink and closed circuit television which are used in some States and Territories - which may assist children who wish to express their wishes in family law proceedings.
The interrelationships between family violence and child abuse/protection have received little attention until recently. Rather, they have been treated as unrelated phenomena. 51 This situation has been complicated in family law matters because of the Court's concern to avoid re-introducing notions of fault into proceedings. The Chief Justice of the Family Court of Australia said in October 1994:
. . . [the Family Court] is criticised for failing to take violence into account in making decisions as to custody and access. It is I think, true that in the past the anxiety on the part of the Court to prevent issues of matrimonial fault being introduced under another guise may have led to an over zealous approach to the exclusion of evidence of family violence when it did not appear to have directly affected the children.
However, it is now well accepted within the Family Court that children are detrimentally affected by violence, even if it is not directed at them . . . 52
Allowing evidence of family violence in family law proceedings does not reintroduce notions of matrimonial fault - it merely allows the court to exercise its responsibility to consider the best interests of the child.
The Chief Justice's views on the effects of family violence are supported by research. The National Committee on Violence Against Women's (NCVAW) Submission to the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act commented that there is a 'growing body of documented research on the detrimental effects of exposure to violence on children.' 53 One study concluded that:
Children who witness their parent's violence have only recently been targeted as a unique population warranting research and clinical attention ... These children are at risk for developing a range of behavioural and emotional problems as a result of growing up in a violent home, even if they themselves are not maltreated. 54
It is possible that children witnessing violence or threats of violence which occur in association with contact orders could be similarly affected. In addition, there is some evidence (referred to above) that children of relationships where spouse abuse occurs may well themselves be the target of mistreatment.
The Family Law Reform Bill 1994 [No.2] provides that contact orders, in general, will prevail over family violence orders. However, the Bill enables State and Territory courts in certain circumstances to vary, make, discharge or suspend a contact order. A number of other approaches could be taken when family violence orders and contact orders co-exist. First, it could be provided that a family violence order will always prevail over a contact order - on the basis that the exposure or risk of exposure to family violence can never be in the best interests of the child. Second, it could be provided that a contact order will be automatically suspended if:
* there is a proven or alleged breach of the family violence order;
* a family violence order is in force and one of the grounds on which the order was made was allegations of death threats or threats of physical violence against the applicant for the order or the applicant's children. 55
It is also arguable that the purposes of new Division 11 [see proposed section 68Q]) are incompatible and that exposure to the occurrence of or threat of violence can never be in the best interests of the child.
1 See Family Law Council, Letter of Advice to the Attorney-General on the Operation of the (UK) Children Act 1989, 10 March 1994.
2 Parliamentary Secretary to the Attorney-General, Parliamentary Debates (Hansard) House of Representatives, Second Reading Speech, Family Law Reform Bill 1994, 8 November 1994, pp 2757-9.
3 Attorney-General, Press Release, Far reaching Family Law Reform Bill, 28 June 1994.
4 Attorney-General, Family Law Act 1975, Directions for Amendment. Government Response to the Report by the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975, December 1993, p 4.
6 Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, The Family Law Act. Aspects of its Operation and Interpretation, November 1992, p 71.
8 Ibid, p 32.
9 Explanatory Memorandum, Family Law Reform Bill 1994, p 8.
10 Attorney-General, Directions for Amendment, op.cit; p 4.
12 Attorney-General, Press Release, op.cit.
13 Bordow, S Gibson, J Evaluation of the Family Court Mediation Service. Research Report: No.12, March 1994, p 11.
14 Parliamentary Secretary to the Attorney-General, 'The Impending Changes to the Family Law Act and their Implications for the Practise of Dispute Resolution in South Australia', Speech at the Annual General Meeting of the South Australian Dispute Resolution Association, 8 November 1994, p 8.
15 Family Court Mediation Section, Melbourne Registry, 'Mediation in the Family Court - An overview of the model', Australian Journal of Family Issues, 8(1), March 1994, pp 58-66, at p 63.
16 Attorney-General, Directions for Amendment, op.cit; p 10.
17 Australian Bureau of Statistics, 1993 Divorces Australia, p 13.
18 Family Law Council, Annual Report 1992-93, pp 62-63.
19 Family Law Council, Patterns of Parenting After Separation, April 1992; Joint Select Committee, op.cit.
20 Joint Select Committee, op.cit; p 97.
21 Family Law Council, Patterns of Parenting, op.cit; p 31.
23 Ibid .
25 Speech by the Hon Chief Justice Alastair Nicholson at the Opening of the Sixth National Family Law Conference, 17 October 1994.
26 Joint Select Committee, op.cit; p 110.
27 Ibid, p 111.
28 A judge of the Family Court of Australia.
29 Joint Select Committee, op.cit; p 110.
30 Ibid, p 99.
31 Ibid, p 109.
32 Quoted in Mugford, J 'Domestic Violence' Violence Today No.2, 1989.
33 Straus, MA 'Wife Beating and Child Abuse: How Much is There and Why Does it Occur?' paper presented at the Australian Psychological Society Conference, Melbourne, September 1988 described in Family Violence Professional Education Task Force, Family Violence. Everybody's Business, Somebody's Life, Federation Press, Sydney, 1994.
34 Wallace, A Homicide. The Social Reality, New South Wales Bureau of Crime Statistics and Research, Sydney, 1986.
35 Queensland Domestic Violence Task Force, Beyond These Walls, 1988.
36 Seddon, N Domestic Violence in Australia. The Legal Response, 2nd ed, Federation Press, Sydney, 1993, p 86.
37 D Wells M Lavarch, 'Red tape cut for domestic violence victims', Press Release (Attorney-General), 66/94, 21 July 1994.
38 Inserted by the Family Law Amendment Act 1991.
39 Sixth National Family Law Conference, op.cit.
40 Parliamentary Secretary to the Attorney-General, op.cit; pp 4-5.
41 Family Law Council, Patterns of Parenting, op.cit.
42 Finlay, HA 'Family mediation and the adversary process', Australian Journal of Family Law, 7(1), April 1993, pp 63-83, at p 80.
43 Order 25A, rule 5, Family Law Rules.
44 Bordow Gibson, op.cit; p 10.
45 Pollard, J 'A Mediators Guide to Family Law', quoted in Parliamentary Secretary to the Attorney-General, op.cit; p 17.
46 Astor, H 'Violence and family mediation: policy', Australian Journal of Family Law, 8(1), March 1994, pp 3-21, at pp 10-11.
47 Parliamentary Secretary to the Attorney-General, op.cit; p 17.
48 National Committee on Violence Against Women, Position Paper on Mediation, December 1991.
49 Family Law Council, Family Mediation, AGPS, Canberra, June 1992.
50 Sixth National Family Law Conference, op.cit.
51 National Committee on Violence Against Women, Submission to the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, December 1991.
52 Sixth National Family Law Conference, op.cit.
53 National Committee on Violence Against Women, Submission, op.cit; p 21.
54 Ibid, p 20.
55 This is a modified version of recommendations made by the National Committee on Violence Against Women, Submission to the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, op.cit.
Jennifer Norberry (Ph. 06 2772476)
Bills Digest Service 2 December 1994
Parliamentary Research Service
This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Commonwealth of Australia 1994.
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Published by the Department of the Parliamentary Library, 1994.