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FAMILY LAW REFORM BILL 1994 [NO. 2]
FAMILY LAW REFORM (CONSEQUENTIAL AMENDMENTS) BILL 1995

Order of the day read for the further consideration of the bills in

committee of the whole.

In the committee

FAMILY LAW REFORM BILL 1994 [NO. 2]--

Consideration resumed of the bill, as amended--and of the amendment

moved by Senator Vanstone--

Clause 31, page 30, proposed section 63D, lines 31 to 35, omit the

section, substitute the following section:

Registration in a court

" "63D.(1) A parenting plan may be registered in a court having

jurisdiction under this Part if:

(a) it is signed by the parties; and

(b) the copy of the plan submitted for registration is accompanied

by a statement, in relation to each party, that is to the effect

that the party has been provided with independent legal advice

as to the meaning and effect of the plan and that is signed by

the legal practitioner who provided that advice; and

(c) the court is satisfied that the arrangements set out in the plan

are likely to promote the best interests of the child.

"(2) In determining whether the arrangements set out in the plan are

likely to promote the best interests of the child, the court may, but

is not required to, have regard to all or any of the matters set out

in subsection 68F(2).

"(3) The Rules of Court may deal with how the plan may be registered

in a court.".

And of the amendments moved by Senator Spindler to the amendment moved

by Senator Vanstone--

Proposed paragraph 63D(1)(b), omit "legal advice", substitute

"advice".

Proposed paragraph 63D(1)(b), after "legal practitioner" insert "or

court counsellor".

Proposed subsection 63D(3) omit "registered in a court", substitute

"assessed and registered by a court".

Debate resumed.

The Minister for Immigration and Ethnic Affairs (Senator Bolkus)

moved--That further consideration of the amendments be postponed.

Question put and passed.

Senator Spindler moved the following amendments together by leave:

Clause 31, page 28, at end of proposed section 62E, add the following

subsection:

" "(3) In considering the practicality of making facilities available

under subsection (2), the Principal Director or the appropriate

officer, as the case may be, must take the following matters into

account:

(a) the degree of equality (or otherwise) in bargaining power of the

parties;

(b) the risk of child abuse (if any);

(c) the risk of family violence (if any);

(d) the emotional and psychological state of the parties;

(e) whether one of the parties may be seeking to use a primary

dispute resolution method to delay proceedings or for some other

advantage;

(f) any other relevant matter.".

Clause 31, page 28, after proposed subsection 62F(2) insert the

following subsection:

" "(2A) In considering whether to make an order under subsection (2),

the court must take the following matters into account:

(a) the degree of equality (or otherwise) in bargaining power of the

parties;

(b) the risk of child abuse (if any);

(c) the risk of family violence (if any);

(d) the emotional and psychological state of the parties;

(e) whether one of the parties may be seeking to use a primary

dispute resolution method to delay proceedings or for some other

advantage;

(f) any other relevant matter.".

Debate ensued.

Question--That the amendments be agreed to--put and negatived.

Senator Spindler moved the following amendment:

Clause 31, page 28, at end of proposed subsection 62F(4), add the

following word and paragraph:

"; or (c) give directions as to the conduct of the conference,

including directions that the parties must not come into

direct contact during the conference.".

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

Senator Spindler moved the following amendment:

Clause 31, page 17, proposed subsection 60B(1), lines 19 to 22, omit the

subsection, substitute the following subsection:

" "60B.(1) The objects of this Part are:

(a) to promote the best interests of children and in particular 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;

and

(b) to ensure safety from family violence.".

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

On the motion of Senator Spindler the following amendment was debated

and agreed to:

Clause 31, page 17, proposed subsection 60B(2), line 23, omit all words

before paragraph (a), substitute the following:

" "(2) The principles underlying these objects are that, except when

it is or would be contrary to a child's best interests:".

Senator Spindler moved the following amendments together by leave:

Clause 31, page 17, proposed paragraph 60B(2)(d), line 32, omit the

paragraph, substitute the following paragraph:

"(d) it is desirable that parents agree, and where appropriate take

steps to reach agreement, on the future parenting of their

children.".

Clause 31, page 21, proposed subsection 60D(1), definition of "family

violence order", line 19, omit all words after "Territory".

Debate ensued.

Question--That the amendments be agreed to--put and negatived.

Senator Bolkus's amendment to clause 31, proposed paragraph 60B(2)(b),

agreed to in the committee of the whole on 25 October 1995 (see entry

no. 11), reconsidered by leave.

Question--That the amendment be agreed to--put and negatived.

Senator Spindler moved the following amendments together by leave:

Clause 31, page 26, proposed section 61B, lines 7 to 10, omit the

section, substitute the following section:

Meaning of "parental responsibility"

" "61B. In this Part, "parental responsibility", in relation to a

child, means:

(a) all the duties, powers and responsibilities associated with the

day-to-day care, welfare and development of the child

("day-to-day parental responsibility"); and

(b) all the duties, powers and responsibilities associated with the

long term care, welfare and development of the child ("long-term

parental responsibility").".

Clause 31, page 26, proposed section 61C, heading, line 11, omit the

heading, substitute the following heading:

"Each parent has parental responsibility (subject to court orders and

any relevant provisions in a registered child agreement or a registered

parenting plan)".

Clause 31, page 26, proposed subsection 61C(3), lines 18 to 20, omit the

subsection, substitute the following subsection:

" "(3) Subsection (1) has effect subject to:

(a) any order of a court for the time being in force (whether or not

made before or after the commencement of this section); or

(b) any provision in a registered child agreement (made prior to the

commencement of this section); or

(c) any provision in a registered parenting plan.".

Clause 31, page 26, proposed section 61D, lines 21 to 29, omit the

section, substitute the following section:

Parental responsibility orders and parental responsibility

" "61D.(1) A parental responsibility order, or the parental

responsibility provision of a registered child agreement or of a

registered parenting plan, confers parental responsibility for a child

only to the extent specifically stated in the order or provision.

"(2) Parental responsibility for a child continues except to the

extent (if any):

(a) expressly provided for in the order, or a provision in a

registered child agreement or a provision in a registered

parenting plan; or

(b) necessary to give effect to the order or provision.".

Debate ensued.

Question--That the amendments be agreed to--put and negatived.

Senator Spindler moved the following amendment:

Clause 31, page 30, proposed paragraph 63B(a), lines 7 and 8, omit all

words after "child", substitute "where agreement is possible and

desirable; and".

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

Senator Spindler moved the following amendment:

Clause 31, page 30, at end of proposed paragraph 63C(2)(c), line 19, add

"without limiting or varying the operation of the Child Support

(Assessment) Act 1989".

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

Bill, as amended, further debated.

Consideration resumed of the postponed amendments to clause 31, proposed

section 63D.

Senator Spindler, by leave, withdrew his amendments to Senator

Vanstone's proposed amendment.

Senator Vanstone, by leave, withdrew her amendment.

Senator Vanstone moved the following amendment:

Clause 31, page 30, proposed section 63D, lines 31 to 35, omit the

section, substitute the following section:

Registration in a court

" "63D.(1) Subject to this section, a parenting plan may be registered

in a court having jurisdiction under this Part.

"(2) To apply for registration of a parenting plan:

(a) an application for registration of the plan must be lodged in

accordance with the Rules of Court; and

(b) the application must be accompanied by:

(i) a copy of the plan; and

(ii) the information required by the Rules of Court; and

(iii) a statement, in relation to each party, that is to the

effect that the party has been provided with independent

legal advice as to the meaning and effect of the plan and

that is signed by the practitioner who provided that

advice.

"(3) The court may register the plan if it considers it appropriate to

do so having regard to the best interests of the child to which the

plan relates. In determining whether it is appropriate to register the

plan, the court:

(a) must have regard to the information accompanying the application

for registration; and

(b) may, but is not required to, have regard to all or any of the

matters set out in subsection 68F(2).

"(4) The Rules of Court:

(a) must prescribe what information is to accompany an application

for registration of a parenting plan; and

(b) may prescribe other matters relating to the procedures for

registration.".

Debate ensued.

Senator Spindler moved the following amendment to Senator Vanstone's

proposed amendment:

Proposed section 63D, paragraph (2)(b), omit the paragraph, substitute

the following paragraph:

"(b) the application must be accompanied by a copy of the plan, the

information required by the Rules of Court, and:

(i) a statement, in relation to each party, that is to the

effect that the party has been provided with independent

legal advice as to the meaning and effect of the plan and

that is signed by the practitioner who provided that advice;

or

(ii) a statement to the effect that the plan was developed after

consultation with a family and child counsellor (as defined

in section 4) and that is signed by the counsellor.".

Question--That Senator Spindler's amendment to Senator Vanstone's

proposed amendment be agreed to--put and passed.

Question--That the amendment, as amended, be agreed to--put and passed.

Bill, as amended, further debated.

Senator Spindler moved the following amendments together by leave:

Clause 31, pages 32 to 44, proposed Divisions 5 and 6, line 34 (page 32)

to line 17 (page 44), omit "Parenting Orders" and "Parenting Order"

(wherever occurring), substitute "Parental Responsibility Orders" or

"Parental Responsibility Order", as the case may be.

Clause 31, page 33, proposed subsection 64B(2), lines 3 to 7, omit the

subsection, substitute the following subsection:

" "(2) The parental responsibility orders which may be made under this

Part are:

(a) a long-term parental responsibility order;

(b) a day-to-day parental responsibility order;

(c) a visiting parental responsibility order;

(d) a child maintenance order.".

Clause 31, page 33, proposed subsections 64B(3) to (8), lines 8 to 37,

omit the subsections, substitute the following subsections:

" "(3) Subject to such conditions or variations as may be ordered by

the court, when the court makes an order for long-term parental

responsibility the order means that the relevant person or persons:

(a) is to undertake long-term parental responsibility for the child;

and

(b) has parental responsibility for decisions concerning the

long-term care, welfare and development of the child.

"(4) Subject to such conditions or variations as may be ordered by the

court, when the court makes an order for day-to-day parental

responsibility the order means that the relevant person or persons:

(a) is to undertake day-to-day parental responsibility for the

child; and

(b) has parental responsibility for day-to-day decisions concerning

the residence, care, welfare and development of the child.

"(5) Subject to such conditions or variations as may be ordered by the

court, when the court makes an order for visiting parental

responsibilitythe order means that the relevant person or persons:

(a) is to undertake day-to-day parental care for the child during

the visiting period or periods specified; and

(b) that the person has responsibility for the day-to-day decisions

concerning the care, welfare and development of the child during

the visiting period or periods specified.".

Clause 31, page 33, section 64C, lines 38 to 40, omit the section,

substitute the following section:

Parental responsibility, parents and others

" "64C. The parental responsibility orders referred to in subsection

64B(2):

(a) may be made in relation to a parent of the child or some other

person; and

(b) may be made in relation to any person or any two or more persons

jointly (whether or not that person or any of those persons is a

parent of the child).".

Clause 31, page 58, proposed paragraph 67J(1)(a), line 13, after "the

person has" insert "or has access to".

Clause 31, page 59, proposed paragraph 67M(2), line 3, after "is likely

to have" insert "or be able to obtain".

Question--That the amendments be agreed to--put and negatived.

On the motion of Senator Spindler the following amendment was debated

and agreed to:

Clause 31, page 59, at end of proposed subsection 67M(4), line 8, add

"or such longer period as the court considers appropriate".

Senator Spindler moved the following amendment:

Clause 31, page 59, proposed subsection 67N(4), line 36, omit all words

after "considers", substitute "that it is necessary to do so in the best

interests of the child.".

Question--That the amendment be agreed to--put and negatived.

On the motion of Senator Spindler the following amendment was debated

and agreed to:

Clause 31, page 60, at end of proposed subsection 67N(9), line 19, add

"unless specifically so ordered by the court".

Senator Spindler moved the following amendment:

Clause 31, page 60, proposed subsection 67P(1), penalty, line 41, omit

the penalty.

Debate ensued.

Senator Spindler, by leave, withdrew the amendment.

Bill, as amended, further debated.

Senator Chamarette moved the following amendment:

Clause 31, page 60, proposed subsection 67P(1), penalty, line 41, omit

the penalty, substitute the following penalty and note:

"Penalty: 120 penalty units.

Note: For the value of a penalty unit, see subsection 4AA(1) of the

Crimes Act 1914.".

Debate ensued.

Senator Bolkus moved--That further consideration of the amendment be

postponed.

Question put and passed.

On the motion of Senator Spindler the following amendment was debated

and agreed to:

After clause 28, page 16, insert the following clause:

Principles to be applied by courts

"28A. Section 43 of the Principal Act is amended by omitting "and' at

the end of paragraph (c) and inserting the following paragraph:

"(ca) the need to ensure safety from family violence; and'.".

Senator Spindler moved the following amendment:

Clause 31, page 69, proposed subsections 68L(2) and (3), lines 29 to 38,

omit the subsections, substitute the following subsections:

" "(2) Where a child who is the subject of any proceedings under this

Act is not represented, the court must appoint a person to represent

the child in those proceedings and, if the court thinks desirable, for

such other purposes (including any other proceedings under this Act or

any other enactment) as the court may specify.

"(3) Where the court appoints a person under subsection (2), it must,

so far as is practicable, appoint a person who is, by reason of

personality, cultural background, training and experience, suitably

qualified to represent the child.

"(4) Even if the proceedings in respect of which any person was

appointed under subsection (2) have been disposed of or if the

appointment is no longer required for any other purpose specified by

the court under that subsection, the court may, if satisfied that it

is necessary or desirable in the interests of the child to do so:

(a) extend the person's appointment; or

(b) subject to subsection (3), appoint another person to represent

the child;

for such purposes as the court may specify.".

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

Consideration resumed of the postponed amendment moved by Senator

Chamarette.

Question--That the amendment be agreed to--put and passed.

On the motion of Senator Bolkus the following amendment was agreed to:

Clause 31, page 60, proposed paragraph 67P(1)(b), lines 31 and 32, omit

the paragraph, substitute the following paragraph:

"(b) an officer of the court, or of another court, for the purpose

of that officer's responsibilities or duties;".

On the motion of Senator Chamarette the following amendment was debated

and agreed to:

Clause 31, page 27, proposed subsection 62C(2), line 26, after "welfare

officer" insert "to assess whether counselling is appropriate in all the

circumstances, and if it is".

Senator Chamarette moved the following amendments together by leave:

No. 1--Clause 31, page 17, after proposed section 60B insert the

following section:

Convention gives rise to legitimate expectations

" "60BA.(1) Unless and until this section is expressly repealed,

the fact that Australia is a party to the Convention on the

Rights of the Child gives rise to a legitimate expectation, on

the part of any person, that to any extent that this Part does

anything less than implement the requirements of the Convention:

(a) an administrative decision will be made in conformity with

the requirements of the Convention; or

(b) if the decision were to be made contrary to any of those

requirements, any person affected by the decision would be

given notice and an adequate opportunity to present a case

against the taking of such a course.

"(2) In this section:

administrative decision means:

(a) a decision by or on behalf of the Commonwealth under this

Part; or

(b) a decision by or on behalf of an authority of, or office

holder of, the Commonwealth under this Part;

that is a decision of an administrative character and includes

such a decision reviewing, or determining an appeal in respect of,

a decision made before the commencement of this Part.".

No. 2--Clause 31, page 66, at end of proposed subsection 68B(1),

add the following word and paragraph:

"; or (e) an injunction restraining a person from removing a

child more than a specified distance from the

place of residence of a parent who has a contact

order in relation to the child.".

No. 3--Clause 31, page 68, after proposed paragraph 68F(2)(d)

insert the following paragraph:

"(da) the practical difficulty and expense of a parent having

access to a child and whether that difficulty or expense

will substantially affect the child's right to maintain

personal relations and direct contact with both parents

on a regular basis;".

Debate ensued.

Senator Bolkus moved the following amendment to amendment no. 3:

Omit proposed paragraph 68F(2)(da), insert the following paragraph

after proposed paragraph 68F(2)(c):

"(ca) the practical difficulty and expense of a child having

contact with a parent and whether that difficulty or expense

will substantially affect the child's right to maintain

personal relations and direct contact with both parents on a

regular basis;".

Debate ensued.

Question--That Senator Bolkus's amendment to amendment no. 3 be agreed

to--put and passed.

The question for the amendments was divided--

Question--That amendment no. 3, as amended, be agreed to--put and

passed.

Question--That amendments nos 1 and 2 be agreed to--put and negatived.

Bill, as amended, agreed to.

FAMILY LAW REFORM (CONSEQUENTIAL AMENDMENTS) BILL 1995--

Bill taken as a whole by leave.

On the motion of Senator Bolkus the following amendments, taken together

by leave, were agreed to:

Clause 2, page 2, lines 1 to 3, omit the clause, substitute the

following clause:

Commencement

"2.(1) Subject to subsections (2), (3), (4) and (5), this Act

commences on the day on which it receives the Royal Assent.

"(2) The amendments made by Parts 1, 2, 3, 4, 4B, 5, 6 and 7 of

Schedule 1 commence on the commencement of section 31 of the Family

Law Reform Act 1995.

"(3) The amendment made by Part 4A of Schedule 1 commences on the

commencement of section 54 of the Family Law Reform Act 1995.

"(4) The amendments made by Part 4C of Schedule 1 commence on the

commencement of section 5 of the Family Law Reform Act 1995.

"(5) Schedule 2 commences 14 days after the day on which this Act

receives the Royal Assent.".

Clause 3, page 2, lines 4 to 6, omit the clause, substitute the

following clause:

Schedules

"3. The Acts specified in the Schedules are amended in accordance with

the applicable items in the Schedules.".

Schedule, Part 1, page 3, item 2, proposed paragraph 5(2)(c), omit

"special purpose order", substitute "specific issues order".

Schedule, page 3, Part 2, Division 1, before item 3 insert the following

item:

"3A. Section 5 (paragraph (b) of the definition of "parent'):

Omit "60B', substitute "60H'.".

Schedule, page 6, Part 2, Division 1, after item 28 insert the following

item:

"28A. Subsection 150(9):

Omit "64A(9)', substitute "67M(6)'.".

Schedule, page 10, Part 3, after item 34 insert the following items:

"34A. Subsection 16(9):

Omit "64A(9)', substitute "67M(6)'.

34B. Subparagraph 19(2)(b)(iv):

Omit "66K', substitute "66Q'.".

Schedule, page 11, after Part 4 insert the following Parts:

"PART 4A--AMENDMENT OF THE COMMONWEALTH

LEGAL AID ACT 1977

38A. Subsection 32(3):

Omit all the words after "Re-establishment and Employment Act 1945'.

PART 4B--AMENDMENT OF THE JURISDICTION OF

COURTS (CROSS-VESTING) ACT 1987

38B. Subsection 3(1) (paragraph (ab) of the definition of "special

federal matter'):

Omit "60AA', substitute "60G'.

PART 4C--AMENDMENT OF THE MARRIAGE ACT 1961

38C. Subsection 9D(1):

Omit "A marriage counselling organization for the time being approved

under section 12', substitute "An approved counselling organisation as

defined in subsection 12(1)'.

Note: The heading to section 9D is altered by omitting "marriage

counselling organizations' and substituting "counselling

organisations'.

38D. Subsection 9D(2):

Add at the end "These conditions count as conditions of the

organisation's approval for the purposes of section 13D of the Family

Law Act 1975 (this section deals with revocation of approvals).'.

38E. Subsection 16(2A):

Omit "marriage counsellor' (wherever occurring), substitute "family

and child counsellor'.

38F. Subsection 16(7):

Omit "marriage counsellor', substitute "family and child

counsellor'.".

Schedule, page 11, Part 5, item 39, proposed subsection 192(8), omit

"special purpose order", substitute "specific issues order".

Schedule, page 12, Part 6, item 44, proposed paragraph 7A(8)(c), omit

"special purpose order", substitute "specific issues order".

Schedule, page 12, Part 7, item 49, proposed subparagraph

250(1)(c)(ia),omit "special purpose order", substitute "specific issues

order".

Schedule, page 13, Part 7, item 55, proposed note 2, omit "special

purpose order", substitute "specific issues order".

At end of bill, page 13, add the following Schedule:

"SCHEDULE 2Section 3

AMENDMENT OF THE EVIDENCE ACT 1995

1. Subsection 4(5):

Omit "The provisions of this Act', substitute "Subject to subsection

(5A), the provisions of this Act'.

2. After subsection 4(5):

Insert:

"(5A) Despite subsection (5), this Act applies in relation to an

appeal to the Family Court of Australia from a court of summary

jurisdiction of a State or Territory exercising jurisdiction under the

Family Law Act 1975.'.

3. Subsection 4(6) (Note):

Omit "Subsections (5) and (6)', substitute "Subsections (5), (5A) and

(6)'.".

At end of title, page 1, add ", and for other purposes".

Bill, as amended, agreed to.

The Family Law Reform Bill 1994 [No. 2] to be reported with amendments

and the Family Law Reform (Consequential Amendments) Bill 1995 to be

reported with amendments and an amendment to the title.

The Deputy President (Senator Reid) resumed the Chair and the Temporary

Chairman of Committees (Senator Colston) reported accordingly.

On the motion of Senator Bolkus the report from the committee was

adopted and the bills read a third time.

Suspension of sitting: On the motion of Senator Bolkus the sitting of

the Senate was suspended till 2 p.m.

At 2 p.m.--