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Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

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2010 - 2011

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

Family Law Legislation Amendment

(Family Violence and Other Measures) Bill 2011

 

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

(Circulated by the authority of the Attorney-General,

the Hon Robert McClelland MP)



Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

Outline

The Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (the Bill) will amend the Family Law Act 1975 (Cth) to provide better protection for children and families at risk of violence and abuse.  The Bill also makes several technical amendments which correct drafting and minor policy oversights and provide other efficiencies for the courts and litigants.

The Government is introducing amendments to some of the items in Schedule 1 of the Bill in response to the Senate Legal and Constitutional Affairs Legislation Committee August 2011 report into the Bill.  The Committee made eight recommendations; six of these recommended amendments.

The amendments to Schedule 1 of the Bill respond to recommendations one, three, five and seven of the Committee’s report.  The amendments implement recommendations one and three of the Committee’s report and will improve the effectiveness of the Bill.  The amendment in response to recommendation five will clarify the commencement date of the provisions of Schedule 1 of the Bill.  The amendment in response to recommendation seven relates to the application of the amendments contained in Schedule 1 of the Bill.

The amendments to Schedule 1 of the Bill:

·          provide certainty around the commencement date of the provisions of Schedule 1 of the Bill

·          simplify the new provision requiring the court to give greater weight to the protection of children from harm when determining what is in a child’s best interests.  For consistency, the same amendment is made to the proposed subparagraph which sets out what advisers are obliged to tell individuals they should consider in determining their own arrangements for children

·          better targets what a court can consider in relation to family violence orders as part of considering a child’s best interests.  It replaces the additional consideration concerning family violence orders with a new paragraph which allows a court to consider current and past family violence orders applying to a child or a member of the child’s family.  It also allows the court to look at the nature of the order, the circumstances in which the order was made, any evidence admitted and any findings made by the court that made the order, and any other relevant matter, and

·          amends the application provision at item 45 of Schedule 1 of the Bill so as to apply the amendments contained in that Schedule only to proceedings instituted on or after commencement of Schedule 1.

These amendments do not alter the position that the Bill retains the substance of the shared parenting laws introduced in the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).  With these amendments, the Family Law Act will continue to promote a child’s right to a meaningful relationship with both parents where this is safe.

Financial Impact

The amendments in this Bill have negligible financial implications.



NOTES ON CLAUSES

Amendment 1: Clause 2, Commencement

1.                   Government amendment 1 amends the commencement date for Schedule 1 of the Bill to provide certainty for potential litigants, litigants and their advisors.   It responds to recommendation five of the Senate Legal and Constitutional Affairs Committee report on the Bill.

2.                   Clause 2 of the Bill provides for the commencement of the Act.  Subclause 2(1) provides that each provision specified in column 1 of the table will commence, or is taken to have commenced, on the day or at the time specified in column 2 of the table.  This Government amendment to column 2 of subclause 2(1) of the Bill relates to item 2 of the table.

3.                   The amendment removes the option for the Schedule to commence on a date to be fixed by proclamation.  Instead, it provides that Schedule 1 of the Bill will commence on the day after the end of the period of 6 months beginning on the day the Act receives the Royal Assent.

4.                   The Committee’s recommendation proposed a commencement date of three months after Royal Assent.  This amendment reflects a commencement date of six months in order to provide sufficient time for the relevant courts to update their Rules before commencement, as well as allowing time for an education campaign to be implemented communicating the effect of the amendments in the Bill in accordance with recommendation six of the Committee’s report.

Amendment 2: Schedule 1, item 17 (After subsection 60CC(2))

5.                   Government amendment 2 omits the words ‘If there is any inconsistency in’ in item 17 of the Bill.  This removes complexity in the drafting and will avoid the need for a court to first determine whether there is an inconsistency between the two primary considerations for determining a child’s best interests before giving greater weight to the consideration about protection from harm.

6.                   The amendment preserves the Government’s intent that, in determining a child’s best interests, greater weight needs to be given to protecting children from harm.  This amendment does not change the importance of also considering the benefit to a child in having a meaningful relationship with both of the child’s parents, nor the weight that should be given to that consideration in cases where there are no concerns for the child’s safety.

7.                   This amendment implements recommendation 1 of the Senate Committee’s report.

Amendment 3: Schedule 1, item 19 (Paragraph 60CC(3)(k))

8.                   Government amendment 3 implements recommendation 3 of the Senate Committee’s report and reflects the wording provided by the Hon. Richard Chisholm AM to the Senate Committee during its inquiry into the Bill.

9.                   The amendment omits proposed new paragraph 60CC(3)(k) which allowed the court to consider any family violence orders which apply to a child or a member of the child’s family.  The amendment inserts a replacement paragraph which allows the court to consider evidence of any family violence order which has or does apply to the child or a member of the child’s family.  Further, it provides for the court to consider any relevant inferences that can be drawn from those family violence orders, taking into account the nature of the order, the circumstances in which it was made, and evidence admitted and any findings made by the court that made the order, and any other relevant matter.

10.               The amendment reflects the position that the relevant circumstances surrounding the making of family violence orders should be considered in determining the best interests of the child and are likely to be of greater probative value than the mere existence of the orders.

11.               This amendment will provide greater guidance to litigants (particularly those who are self-represented) about the type of evidence they might like to submit to a court in parenting matters.  This aligns with one of the stated objectives of the Bill, being to encourage better evidence of family violence and child abuse to be provided to the family courts.

12.               The definition of ‘family violence order’ in subsection 4(1) of the Family Law Act remains unchanged.  This definition draws on orders made under prescribed state and territory legislation.

13.               The proposed amendments to paragraph 60CC(3)(k) are not intended to restrict the matters to which the court may have regard under existing paragraph 60CC(3)(m) of the Act.

Amendment 4: Schedule 1, item 22 (After Subdivision BA of Division 1 of Part VII)

14.               Government amendment 4 is designed to achieve consistency between the information advisers must give to individuals in assisting them to determine parenting arrangements with the way in which courts will assess the best interests of a child during proceedings for Part VII orders under the Act.  To that end, it is consistent with Government amendment 2.

15.               This amendment removes complexity in the drafting of the Act and will make it easier for advisers to provide clear guidance to individuals on how to assess the best interests of a child.   The new adviser obligations, inserted by the Bill, will facilitate individuals, and particularly parents, considering the protection of their children from harm as a priority at an early stage in discussions.

Amendments 5 and 6: Schedule 1, item 45 (Amendments that apply to proceedings instituted on or after commencement)

16.               Government amendments 5 and 6 respond to concerns raised during the Senate Committee inquiry about the effect of having the amendments in Schedule 1 of the Bill applying to proceedings instituted before the commencement date.  They amend the item in the Bill so as to apply the listed amendments contained in Schedule 1 of the Bill to only those matters commenced on or after commencement and achieve a related consequential matter.  This aligns the provision with the current heading in the Bill.

17.               While the Committee had recommended a change to the heading of item 45, its report also indicated some uncertainty about the ability to use the Regulation making power contained in item 48 of the Bill to deliver an appropriate balance between the need to prioritise the safety of children caught in family law disputes, the preference for certainty of start dates for amendments and avoiding undue increased time and costs for those litigants already before the court.

18.               Given the imposition that would be put on the family courts and litigants to parenting matters before the courts at the time of commencement, not all of whose cases would involve concern for the safety of children, the Government considers a legislative amendment to apply the amendments prospectively is the best way to deliver an appropriate balance between the protection of children and access to justice for those litigants already in the family courts.

19.               Government amendment 5 is consequential upon amendment 6.  As a result of only applying the amendments prospectively, there is no need to make their application subject to item 47 which provides the amendments made by Schedule 1 do not affect an order made under, or a certificate given under subsection 60I(8) of, the Act as in force immediately before commencement.