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Family Law Act - Family Law Council - Report - Year - 1993-94


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FAMILY • LAW · COUNCIL

ANNUAL REPORT

• 1993-1994 ·

FAMIL Y LAW COUNCIL

ANNUAL REPORT

1993-94

Australian Government Publishing Sendee Canberra

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© Commonwealth of Australia 1994

ISSN 0155-2953

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Australian Government Publishing Service. Requests and inquiries concerning reproduction and rights should be addressed to the Manager, Commonwealth Information Services, Australian Government Publishing Service, GPO Box 84, Canberra ACT 2601

Produced by the Australian Government Publishing Service

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FAMILY LAW COUNCIL

LEVEL 3

50 BLACKALL STREET BARTON ACT 2600

Telephone: 06-2506375 Fax: 06-2505917

7 October 1994

The Hon Michael Lavarch MP Attorney-General Parliament House CANBERRA ACT 2600

Dear Attorney-General,

In accordance with sub-section (9) of section 115 of the Family Law Act 1975, 1 have the honour to present to you the Annual Report of the Family Law Council for the period 1 July 1993 to 30 June 1994.

This/iepoVt was prepared by myself and Council's Secretariat with the assistance of, and/in consultation with, Council members.

(John Fau Chairman

Family Law Council Members, Observers and Staff 1993-94

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CONTENTS

Page

Compliance with Annual Report Guidelines 1

Powers, functions and objectives of Council 4

Members of Council 1993-94 5

1. OVERVIEW 7

2. ADVICE TO THE ATTORNEY-GENERAL 1993-94

Reports - The Operation of the (UK) Children Act 8

- Female Genital Mutilation 12

Letters of advice - Interpreters in the Family Court 15

- Family Court Statistics 15

- Domestic violence orders and access orders 15

- First World Congress on Family Law and Children's Rights 16 - Family Court accommodation in Darwin . 16

- Separate Representation of Children 16

- Review of Family Court penalties 17

- Convention on the Rights of the Child 17

- Simplification of the procedures of the Family Court 18

- Property division under the Family Law Act 18

Submissions - Child Support Inquiry 19

- Australian Law Reform Commission Inquiry 22

- Judicial appointments submission 24

- Family Law in the Magistrates Courts 25

3. IMPLEMENTATION OF COUNCIL'S RECOMMENDATIONS

Recommendations finalised 30 June 1983 27

Recommendations not actioned at 30 June 1983 27

Recommendations made in major reports 1.7.83-30.6.94 29 Recommendations made in letters of advice 1.7.83-30.6.94 30

4. ADMINISTRATIVE MATTERS

Mode of operation of Council 33

Meetings 1993-94 33

Membership 33

Committee system 34

Other Council Business 34

Attorney-General 35

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Relationship with other bodies in family law 36

- The Family Court of Australia 36

- The Family Court of Western Australia 37

- The legal profession 37

- Legal aid agencies 37

- The Law Reform Commissions 38

- Australian Institute of Family Studies 38

Family Law Council participation in other activities 38

Council staff 39

Financial resources 39

- Table 1: Travelling Allowances 1983-1994 40

- Table 2: Sitting Fees 1983-1994 40

- Program Costs 40

- Economy measures 41

- Sitting fees 41

- Overall expenditure 42

- Table 3: Expenditure 1983-1994 42

- Table 4: Expenditure 1992-93 & 1993-94 42

- Chart 1: Family Law Council Expenditure 1993-94 43

Council publications 43

Family Law Council News 43

Council minutes 44

Public release of submissions to Council 44

Acknowledgments 45

5. STATISTICS

Introduction 46

Australian Bureau of Statistics 47

Marriage arid divorce 47

- Chart 2: Marriage and divorce rates 1989 -1993 47

- Chart 3: Marriages registered and divorces granted 1989 -1993 47 Marriages celebrated and dissolved 47

Divorces granted 48

Joint applications 49

Number of children affected by divorce 49

- Table 5: Number of children involved in divorce 1989-1994 49 Family court statistics 49

Waiver of court fees 49

- Chart 4: Percentage of Court fees waived 50

Divorce applications made in person 50

- Chart 5: Percentage of in-person applications 51

Court orders sought 51

- Chart 6: Orders sought from Family Court 51

Ancillary applications . 52

- Table 6: Custody/guardianship and access (all children) 52 - Table 7: Custody and access (ex-nuptial children) 52

Property 52

- Chart 7: Number of property applications filed 52

Order 24 conferences 53

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Maintenance 53

- Chart 8: Number of maintenance applications filed 53

Injunctions 54

- Chart 9: Number of applications filed for injunctions 54

Pre-hearing conferences 54

Consent orders 54

Contested matters 55

- Table 8: Matters fixed for trial and finalised by agreement or judgment 55

Appeals 55

- Chart 10: Number of appeals filed 55

- Table 9: Disposal of appeals 56

- Chart 11: Division of issues litigated on appeal 56

Court Counselling Services 57

- Family Court of Australia 57

Table 10: Voluntary, privileged and reportable counselling cases 57

Table 11: Opened counselling cases by category 58 - Family Court of Western Australia 58

Table 12: Referrals to the counselling service 59

Table 13: Categories of Court-referred cases 59

Table 14: Telephone counselling ■ 59

APPENDICES

A. Section 115 of the Family Law Act 60

B. Council publications 62

C. Council Committees 1993-94 63

D. Persons or organisations who have met with Council from 1 July 1993 to 30 June 1994 70

E. Memorandum of understanding between the Family Law Council and the Australian Law Reform Commission 72

F. Interstate portability of domestic violence orders 74

G. Council recommendations in letters of advice implemented 1 July 1983-30 June 1994 77

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COMPLIANCE WITH ANNUAL REPORT GUIDELINES

The following information is provided in compliance with the Guidelines for the Content, Preparation and Presentation of Annual Reports by Statutory Authorities.

ENABLING LEGISLATION

Section 115 of the Family Law Act 1975. The Family Law Council was established by section 115 of the Family Law Act 1975. Section 115 is set out in full at Appendix A to this report.

RESPONSIBLE MINISTER

Attorney-General. The responsible Minister is the Attorney-General who appoints the Chairperson and Members, has power to terminate the appointment of a Member in specified circumstances and may convene meetings of Council.

Annual Report. The Family Law Council is required to furnish a report to the Attorney-General for presentation to Parliament as soon as practicable after 30 June each year (sub-section 115(9)). Sub-section 115(10) requires that the Annual Report be tabled within 15 sitting days of its receipt by the Attorney-General.

POWERS, FUNCTIONS AND OBJECTIVES

The powers, functions and objectives of Council are set out on page 4 of this report.

MEMBERSHIP AND STAFF

Appointment of Members of Council. Members of the Family Law Council are appointed by the Attorney- General under section 115(2) of the Family Law Act. Appointment is for a period of up to 3 years and members may be reappointed. As appointments are staggered, the terms of office of 3 or 4 members usually expire on

30 June each year. Members who retired on 30 June 1993 are listed at paragraph 4.06. New members appointed during 1993-94 are listed at paragraph 4.07.

Composition of the Family Law Council The Family Law Act does not specify the number of Members of Council. At the present time it is Government policy for Council to be comprised of the Chairperson and 10 Members. It is also Government policy that, as far as is reasonably practicable, there should be a Chairperson and 5

women and 5 men on Council with as wide as possible geographical representation of the various Australian States and Territories.

Council Members 1993-94. Council members for 1993-94, their occupations and terms of appointment are listed at page 5 of this report. Council regards Members as

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being appointed as individuals rather than as representatives of their employers or organisations. However, the Family Law Act specifies that certain bodies, such as the Family Court, should be represented on the Family Law Council.

Observers. There are no provisions in the Family Law Act relating to the appointment of Observers on Council. However, Council currently has 5 Observers. The names of Observers and their background are given at page 6 of this report.

Council's Staff. Staff members during the reporting year are listed at page 6.

Council's Information Officer is:

The Director of Research Family Law Council Level 3

50 Blackall Street BARTON ACT 2600

Telephone: (06)250 6375 Fax: (06)250 5917

FINANCIAL STATEMENT .

General information. Funds are allocated to Council by the Attorney-General's Department for two purposes: Program Costs and Sitting Fees. Details of Council's budgetary allocations and its expenditure for 1993-94 are provided in Part 4 - Administrative Matters.

Payments to Members. The rates of travelling allowances and sitting fees payable to the Chairperson and Members are set out at paragraphs 4.43 and 4.44 respectively. Expenditure on sitting fees is reported on in paragraphs 4.60-4.62. The explanatory notes for Chart 1 (paragraph 4.65) provide details of expenditure on travel and accommodation.

Program costs. The costs, including sitting fees, of maintaining the Family Law Council are provided at paragraphs 4.63 - 4.65. Economy measures in place during 1993-94 are referred to at paragraphs 4.49 - 4.50. Total expenditure for 1993-94 is summarised in Table 3 and Table 4 compares expenditure for this year with the previous financial year.

Staff salaries. Council's Secretariat comprises the Director of Research (Legal 2), one Legal 1 and one Administrative Service Officer, Grade 3. The Secretariat is a section in the Family and Administrative Law Branch of the Attorney-General's Department. Staff salaries are met by the Attorney-General's Department. Staff

travel is included in Council's program costs and expenditure during 1993-94 on staff travel is set out in the explanatory notes for Chart 1 (paragraph 4.65).

Printing and office supplies. Expenditure on printing and office supplies is given in the explanatory notes for Chart 1 (paragraph 4.65).

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ACTIVITIES AND REPORTS

Meetings of Council. Details of Council meetings during the reporting year are given in paragraph 4.03.

Council committee meetings. Details of the meetings held by Council's current committees are given at paragraphs 4.08 - 4.10. Membership of the current committees, the terms of reference of active projects and the current status of projects are set out in Appendix C.

Work Program 1993-94. Council's 1993-94 Work Program is referred to in paragraphs 4.08 - 4.11 (Committee System), Appendix C and paragraphs 4.12 - 4.19 (Other Council Business). Advice given to the Attorney-General during the year is summarised in Part 2 of the report. Part 3 summarises the current position in

relation to the implementation of Council recommendations.

Relationship with other bodies. A report on Council's relationship with other bodies is provided at paragraphs 4.23 - 4.37 of this report. Persons and organisations with whom Council met during the reporting year are listed at Appendix D.

Statistics. Council collects statistical data on family law and related matters from a number of sources. This material is presented in Part 5.

Publications. Council's discussion papers and reports are listed at Attachment B. Council publishes a quarterly newsletter called the Family Law Council News which is discussed at paragraphs 4.67 - 4.68. Minutes of meetings of Council and Council's Committees are available for perusal at the Lionel Murphy Library, Attorney- General's Department, Canberra (see paragraphs 4.69 - 4.70). At paragraphs 4.71 - 4.73 reference is made to the release of material, under the Freedom of Information Act and otherwise, by Council.

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POWERS, FUNCTIONS AND OBJECTIVES

FAMILY LAW ACT 1975 - SECTION 115

The Family Law Council is a statutory authority established by section 115 of the Family Law Act 1975. Under sub-section 115(3) of the Act, the functions of Council are to advise and make recommendations to the Minister concerning:

• the working of the Family Law Act 1975 and other legislation relating to family law;

• the working of legal aid in relation to family law; and

• any other matter relating to family law.

Advice and recommendations to the Minister may be either at Council's own instigation or in response to a referral by the Minister.

COUNCIL'S SECRETARIAT

Council has a small Secretariat to assist in the carrying out of its functions. The functions of the Secretariat are:

• To provide policy advice, research services and drafting assistance to Council, especially in the performance of its functions under section 115 of the Family Law Act.

• To provide secretarial, administrative and other support services to Council, especially in relation to meetings of Council and Council Committees and in the drafting and production of Council's reports, discussion papers, letters of advice and other material.

• To manage Council's annual budgetary allocations for running costs and sitting fees.

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MEMBERS OF COUNCIL 1 JULY 1993 - 30 JUNE 1994

CHAIRPERSON APPOINTMENT

Mr John Faulks Barrister & Solicitor Australian Capital Territory

1 July 1992 - 30 June 1995

MEMBERS

Ms Jenny Bedlington Department of Immigration & Ethnic Affairs Australian Capital Territory

Dr Nigel Collings Child Psychiatrist Queensland

Mr Andrew Crockett Legal Aid Commission Victoria

Associate Professor Regina Graycar University of NSW New South Wales

Ms Louise Hansen Aboriginal & Torres Strait Islander Commission Western Australia

Mr Richard Morgan Attorney-General's Department Australian Capital Territory

Ms Patricia Moroney Clinical Psychologist and Consultant New South Wales

Ms Matina Mottee Association of Non-English Speaking Background Women of Australia New South Wales

The Hon Justice Sally Thomas Supreme Court of the NT Northern Territory

The Hon Justice W B Treyvaud Family Court of Australia Victoria

1 July 1992 - 30 June 1995

1 July 1992 - (expires 30 June 1995)

22 July 1991 30 June 1994

1 July 1992 - 30 June 1995

2 September 1993 30 June 1996

2 September 1993 30 June 1996

2 September 1993 30 June 1996

22 July 1991­ 30 June 1994

22 July 1991­ 30 June 1994

1 July 1992 - 30 June 1995

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OBSERVERS

The Hon Justice David Anderson Family Court of WA Western Australia

Dr Carole Brown Principal Director of Court Counselling Family Court of Australia New South Wales

Dr Kate Funder Senior Research Fellow Australian Institute of Family Studies Victoria

Ms Margaret Harrison Senior Legal Associate Office of the Chief Justice of the Family Court Victoria

Ms Pauline Kearney Project Manager Australian Law Reform Commission New South Wales (To February 1994)

SECRETARIAT

Mr Bill Hughes Director of Research

Mr Peter Trahair Legal Officer

Ms Mauveen Waller Research Officer (To May 1994)

Ms Bim Engler* Administrative Officer

*Ms Pam Hartshorn acted as Administrative Officer from 1 July 1993 to 31 December 1993 during Ms Engler's absence on higher duties and leave.

Address: Family Law Council

Level 3 50 Blackall Street BARTON ACT 2600

Telephone: Fax:

(06) 250 6375; (06) 250 6627 (06) 250 5917

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1. OVERVIEW

1.01 During 1993-94 the Family Law Council released the following discussion papers for public comment:

Sterilisation and other medical procedures on children (October 1993) Family Law in Magistrates Courts (October 1993) Female Genital Mutilation (January 1994)

1.02 Council's report Female Genital Mutilation was transmitted to the Attorney - General on 15 June 1994 and subsequently tabled in Parliament and published.

1.03 On 16 November 1993 the acting Attorney-General, the Hon Duncan Kerr MP, asked Council to examine the operation of the (UK) Children Act 1989 in light of the Government's "predisposition to depart from the current regime of guardianship, custody and access and to enact provisions based upon those contained in" the UK

Act. Council had recommended such an approach in its report Patterns of Parenting After Separation (April 1992). Council was asked to report on this issue before the end of March 1994.

1.04 Council's report The Operation of the (UK) Children Act (March 1994) was transmitted to the Attorney-General on 10 March 1994 and was subsequently tabled in Parliament and published. The report also contained recommendations for consequential changes to the provisions of the Family Law Act relating to the recovery of abducted children.

1.05 During the year Council made detailed submissions to several inquiries, including:

• The Parliamentary Joint Select Committee on Certain Aspects of Family Law: The Operation and Effectiveness of the Child Support Scheme (September 1993) • The Inquiry by the House of Representatives Committee on Legal and

Constitutional Affairs into the Australian Law Reform Commission (October 1993) • Attorney-General's Discussion Paper on Judicial Appointments (December 1993)

• Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act - Family Law in Magistrates Courts (June 1994).

1.06 As in previous years, a range of letters of advice went to the Attorney-General on a variety of topics. This report gives details on the issues involved and the advice given by Council.

1.07 At the end of a busy and productive year Council notes with some satisfaction that a number of its reports and letters of advice have been considered in relation to the preparation of the Family Law Reform Bill 1994, which proposes extensive and

far reaching changes to the Family Law Act.

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2. ADVICE TO THE MINISTER 1 JULY 2993 - 30 JUNE 1994

2.01 Advice during the year was provided to the Attorney-General in three forms:

• Reports

• Letters of Advice • Submissions

The advice given during 1993-94 is summarised below under these three categories.

REPORTS

The Operation of the (UK) Children Act 1989

2.02 This report was transmitted to the Attorney-General on 10 March 1994. It contained the following recommendations:

1. That the Attorney-General meet with other State, Territory and Commonwealth Ministers responsible for legislation relating to the care of children emphasising the need for an urgent survey of all relevant legislation to determine what consequential changes will be required for Australian Governments to adopt uniform terminology in relation to the care of children; and

2. That for the purposes of compliance with the Hague Convention on the Civil Aspects of International Child Abduction, there should be a deeming provision (similar to that used in relation to the UK legislation) under which a "parenting order", as provided for in these recommendations, would be regarded as a

"custody order" in relation to international child abductions.

3. Council recommends that the Family Law Act be amended to include a provision which requires the court to process matters relating to children in a timely and expeditious manner.

4. The Government proceed with a change in terminology away from the custody/access model, so as adequately to reflect the significant change in philosophy which is proposed in these amendments; and

5. Where appropriate, orders of the Family Court be made as follows:

(i) Orders in relation to the care of children should be known generally as "parenting orders";

(ii) "Parenting orders" should refer to the "residence" of the child, "continuing contact" with the child and contain any "special purpose" arrangements which the Court considers necessary; and

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(iii) A "guardianship order" should be made where the Court considers this necessary.

6. The legislation should contain a provision which would enable parents to register parenting agreements with the court.

7. The "welfare principle" be retained in its current form but that it be re-named "the best interests" principle;

8. The checklist in section 64(l)(bb) of the Family Law Act be amended to read as follows:

(bb) the court shall take the following matters into account -(i) the ascertainable wishes of the child concerned (considered in the light of his or her age and understanding);

(ii) the nature of the relationship of the child with each of the parents of the child and with other persons;

(iii) the likely effects on the child of any changes in his or her circumstances;

(iv) the child's physical, emotional and educational needs;

(v) the child's age, sex, background and any characteristics of the child which the court considers relevant;

(vi) any harm which the child has suffered or is likely to suffer;

(vii) the attitude to the child, and to the responsibilities and duties of parenthood, demonstrated by each parent of the child; and

(viii) any other fact or circumstance that, in the opinion of the court, the best interests of the child require to be taken into account; and...

9. The no order principle as set out in the UK Act in relation to private law matters is too inflexible. Council considers that it would be appropriate to direct that a court, in considering the best interests of the child, should take into account whether to make no order would, in all the circumstances, be preferable to

making an order.

10. The Family Law Act be amended to include the (UK) Children Act concept of "parental responsibility"; that is, "all the duties, powers, responsibilities and authority which by law a parent of a child has in relation to that child.

11. The Act should make it clear that parental responsibility does not cease on separation and that the best interests of the child will generally require continuing contact with both parents and complementary parenting skills.

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12. Council does not see a need for the legislation to contain any special provisions in relation to parenting plans.

13. Sections 64(9) and (10) and section 64A be amended along the following lines:

• Privacy. The restricted circumstances under which Commonwealth Government Departments can be required to release personal information about their clients will need to be retained to satisfy privacy requirements. The main implications of this are:

- The fact that an abduction has occurred and the applicant is a person who has parental responsibility in relation to the child will need to be pre-requisites to the issue of a warrant under section 64A [existing section 64A(1)]; and

- The court will need to be satisfied that information relating to the child or a person who the court has reasonable cause to believe has possession of the child is likely to be in the records of the Commonwealth body concerned [existing section 64A(4)].

• Restricted use of Commonwealth records. There are several provisions in section 64A which are designed to ensure that the work which flows to Commonwealth bodies is minimised. Those provisions should be retained. They relate to:

- Service of application for order [existing section 64A(5)J;

- Unless exceptional circumstances apply an order cannot be made against more than one Commonwealth body at any one time [existing section 64A(6)];

- Restrictions on the scope of Orders [existing sections 64A(3) and (8)]; and

- Where appropriate orders may be limited to records of a specified kind [existing section 64A(7)].

The definitions in section 64A will need to be retained [existing section 64A(11)].

• Protection against violence. The redraft should take into account the sensitivities relating to "domestic abductions". Relevant existing provisions will need to be retained. Also, new provisions, as recommended in Council's Section 64A report, will be needed to achieve this. The matters which need to be covered are:

- Measures to protect information provided to the Court. This could be achieved through a provision similar to existing section 64A(10). Amendments to section 64A(10)(c) proposed by the Attorney- General's Department and endorsed by Council will need to be

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made. Those amendments would (a) limit the discretion to disclose information in relation to an applicant, and (b) would provide for a penalty for an unauthorised disclosure;

- Administrative procedures to be established by the court to enable persons and Government agencies to have recorded on the court's files allegations about, or the existence, of domestic violence [Recommendation 1 in Council's Section 64A report];

- The mandatory inclusion of recorded information about domestic violence by Commonwealth bodies when providing information to the court under section 64A [Recommendation 3 of Council's Section 64A report]; and

- Service by the Marshall and the use of process servers in all matters , involving the illegal removal of children [Recommendation 4 of Council's Section 64A report].

• Amendment of existing provisions relying on custody/access terminology. A number of existing provisions in sections 64 and 64A use or rely on the custody/access terminology. Amendments to these will need to be considered. They are:

- section 64(9); - section 64(10); - section 64A(1); and - section 64a(4).

A new system of orders to replace the current system is further considered below.

14. The existing system of orders in relation to the recovery of children, which is based on the custody/access model, needs to be replaced in view of the above amendments. A new three stage system of orders as follows is recommended:

• initially there would be an application for a declaration that the applicant is a person with parental responsibility (as defined in the amending legislation proposed by Council in its advice on the (UK) Children Act);

• second, the applicant with parental responsibility would seek a "location order" under section 64A to approach the relevant Commonwealth Government Department for a search of records to locate the abducting persons address (as indicated above a number of existing safeguards will need to be retained and new protections introduced); and •

• third, there would be an application for a "recovery order" similar to that used in the UK.

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15. With the above basic approach in mind, and being conscious of the various sensitivities involved and having regard to the provisions of the (UK) Children Act and the Convention of the Rights of the Child the following definitions of "location order" and "recovery order" seem appropriate:

Location order. A "location order" would be issued where the location of the child was not known. The location order would require any person with information as to the child's whereabouts to disclose it if requested to do so. In drafting the provisions relating to "location orders" it would be necessary to take into account the matters set out in paragraph 77.

Recovery order. A "recovery order" would be made on the application of any person who has parental responsibility for the child or the police. Where a recovery order is made by the Court it would :

• operate as a direction to any person who is in a position to do so, to produce the child on request to any authorised person;

• authorise the removal of that child by that person;

• authorise a person to enter and search premises for the child; e • if necessary, give directions in relation to the short-term care of the child until such time as residence/continuing contact issues are resolved. (This

could involve leaving the child with the "abducting" parent, ordering that the child be placed in the care of the applicant parent or appointing a temporary guardian);

• take into account the sensitivities relating to dealing with children and be drafted so as to take into account the relevant provisions of the CROC. The order would need to be made in the best interests of the child concerned; and

• if necessary, prohibit the "abducting" party from moving on.

2.03 Council's recommendations are being considered in relation to the preparation of the Family Law Reform Bill 1994.

Female Genital Mutilation

2.04 This report was transmitted to the Attorney-General in June 1994 and contained the following recommendations:

1. Council agrees that education must be a first priority in any program for the elimination of female genital mutilation. To this end it recommends that:

(a) A national communication and education program on female genital mutilation be developed by the Commonwealth Department of Human Services and Health, in consultation with the States and Territories and the

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relevant communities, and that the campaign be integrated with Australia's health advancement and child value and protection agendas;

(b) The education program's primary focus be on members of communities coming from countries where female genital mutilation is practised and that wherever possible these education programs should be conducted by members of the communities themselves with the assistance of others,

such as health workers;

(c) It is essential that vulnerable communities be involved in planning, as well as delivering education programs, and that adequate funds be provided for education.

(d) Other target groups for education include child protection workers, care providers (including doctors, midwives, nurses, educators, child and ethnic care workers, social workers and community workers), police and the Courts and legal profession.

(e) The Commonwealth Department of Immigration and Ethnic Affairs cooperate in the development and delivery of an effective information program for newly arrived migrants from countries which practise female genital mutilation; and

(0 The Commonwealth Government provide adequate funds for community education.

2. In order to achieve uniform legislation without delay, the Commonwealth Parliament immediately pass legislation making it clear that the practice of female genital mutilation is a criminal offence and also that it constitutes child abuse under Australian child protection legislation;

3. The Commonwealth pass legislation which provides children taken out of Australia with the same protections from female genital mutilation as they would have in Australia;

4. The Standing Committee of Attorneys-General consider whether State/Territory legislation may also be necessary. Ultimately the matter is one for the States/Territories;

5. Legislation cover those matters identified in Recommendation 4 below.

6. Immediate steps be taken to implement an education program along the lines proposed in recommendation 1; and

7. Criminalising aspects of the legislation should not become operative until the education program is satisfactorily established and operating.

8. Council recommends that to be fully effective legislation should cover the following matters:

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(a) It should put the issue beyond doubt that female genital mutilation, in all of its forms, is a criminal offence;

(b) It should be made clear that female genital mutilation, in all of its forms, constitutes child abuse under Australian child protection legislation;

(c) The law should take into account the best interests, and protection, of the child in relation to imposing penalties on parents who allow this procedure to be carried out on their children. Other relevant factors should include whether the parent has offended previously, whether the parent acted in knowledge of the law and the type of procedure performed on the child;

(d) There should be severe penalties, including imprisonment, for professionals who perform female genital mutilation;

(e) There should be severe penalties, including imprisonment, for non­ professionals (including relatives) who perform the procedure and for those who aid and abet such persons, including those who arrange for children to be genitally mutilated;

(f) Appropriate sanctions should apply to institutions at which female genital mutilation is carried out. Officers of the institution should be liable for criminal prosecution;

(g) Mandatory notification should apply to State/Territory child protection authorities of prospective or actual incidences of female genital mutilation. Ideally, subject to Constitutional power, the widest possible list of persons required to notify should apply;

(h) Legislation should make it an offence to take, or to propose to take, a child outside Australia to be genitally mutilated. The legislation should be based on the Canadian model; and

(i) The legislation should acknowledge the importance of education programs and of counselling and other forms of assistance.

9. Council recommends that the Joint Health and Community Services Ministerial Council be asked to develop protocols specifically for the purpose of dealing with instances of female genital mutilation.

10. Council is of the view that further legislation is not necessary to enable young women to have reconstructive surgery where they so desire.

11. Council considers that provision must be made for counselling and support services for women and children, including those who reject the practice of female genital mutilation.

12. In Council's view there is no need for special legislation on the jurisdiction of the courts in relation to female genital mutilation. However, Council is of the

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view that proceedings relating to female genital mutilation should be conducted in a closed Court.

13. Council urges the Government to participate in international forums and by other means to take part in the international campaign against female genital mutilation.

2.05 The Attorney-General indicated that he would be discussing Council's recommendations with State and Territory Attorneys-General in the Standing Committee of Attorneys-General.

LETTERS OF ADVICE

Interpreters in the Family Court

2.06 In a letter of advice on 30 July 1993 Council expressed concern that funds available for providing interpreters in the Family Court were not being expended because of communication problems with officials in the Court's various registries.

2.07 The Chief Justice has since informed Council that officials have been advised of available funding and that funds are being fully utilised. He has asked Council to draw any specific problems in this area to his attention.

Family Court Statistics

2.08 In a letter of advice dated 30 July 1993, the Family Law Council, the Australian Bureau of Statistics (ABS) and the Australian Institute of Family Studies (AIFS) had discussions with the Family Court about proposed amendments to the Court's Form 4 (Application for Dissolution of Marriage). The Court is of the view that the form can be simplified and that there is no need to collect some of the information

currently collected on the form. Council, the ABS and the AIFS have some concerns about the Court's proposals and Council has written to the Chief Justice of the Family Court expressing these concerns and asking that the Court involve the ABS in discussions relating to further work on the review of the form.

2.09 The ABS has since prepared a detailed proposal for submission to the Court. Council is monitoring progress on the matter.

Domestic Violence Orders and Access Orders

2.10 In a letter of advice of 30 July 1993 Council expressed concern to the Attorney- General that it was not given the opportunity to comment on legislative changes affecting the Family Court which were agreed to by the Standing Committee of Attorneys-General. The changes in question involved, among other things,

empowered the Magistrates Courts to vary an access order made by the Family Court.

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2.11 The Attorney-General asked his Department to ensure that Council is consulted on such matters in future wherever this can reasonably be done within the time frame allowed and having in mind the need to preserve confidentiality.

First World Congress on Family Law and Children's Rights

2.12 The First World Congress on Family Law and Children's Rights in Sydney on 4­ 9 July 1993 passed a final communique on the rights of children. The communique especially referred to the responsibilities of Governments in upholding the rights of children.

2.13 In referring this matter to the Attorney-General in a letter of advice on 23 July 1993, Council particularly drew attention to its report Patterns of Parenting After Separation (April 1992) and referred to the positive feedback it had received on the operation of the (UK) Children Act. Council strongly urged the Government to reconsider its position on the custody access terminology in the Family Law Act and to implement the recommendations of Council.

2.14 The Attorney-General subsequently asked Council to report urgently on the operation of the (UK) Children Act 1989 (see paras 2.02 - 2.03 above) and has since indicated the Government's "predisposition to depart from the current regime of guardianship, custody and access and to enact provisions based upon those contained in the Children Act 1989 (UK)".

Family Court Accommodation in Darwin

2.15 During the course of its meeting in Darwin on 16-17 September 1993 Council members noted the poor working conditions under which officers of the Court were required to work and also the poor facilities for the public at the Darwin Court. The

Chairman wrote to the Attorney-General on 30 September 1993 and issued a press release on the matter which was taken up by the Darwin media.

2.16 At a meeting with the Attorney-General on 6 October 1993, the Chairman was advised that negotiations were being held with the Northern Territory Government about possible alternative accommodation for the Family Court in Darwin. Council was subsequently advised that the Family Court had moved into premises vacated by the NT Supreme Court.

Separate Representation of Children

2.17 Council wrote to the Attorney-General on 20 January 1994 about the Government's response to Recommendation 36 in the Report of the Joint Select Committee on the Family Law Act, which was published in December 1993. The recommendation was that a separate representative for a child should be appointed where there are allegations of child sexual abuse or where, in the opinion of the

Family Court, the circumstances of the case are such that the welfare of the child is seriously at risk.

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2.18 In its response the Government said that it accepted the recommendation and noted that it accorded with the usual practice of the Family Court. Council advised the Attorney-General that while it was the policy of the Court that a separate representative be provided for children in the circumstances specified, Council understood that for a range of reasons this did not always occur in practice. Council

further advised that it believed the number of cases where separate representation was not provided may be significant and, therefore, there will be cost implications.

2.19 Council asked that the matter be considered during the course of budgetary processes relating to the implementation of the Family Law Reform Bill 1994.

2.20 Council's comments were noted. The matter will be further considered by Council's Child Representation Committee which is currently examining the issue of representation of children in Family Court proceedings.

Review of Family Court penalties

2.21 On 16 November 1993 the acting Attorney-General, the Hon Duncan Kerr MP, wrote to Council about recommendation 59 in the Report of the Joint Select Committee on Family Law which recommended that the Family Law Council conduct a review of penalties applied by the Family Court in cases of non­

compliance with orders and injunctions which come before the Family Court. Council was asked for an urgent report on the matter.

2.22 In its advice of 20 January 1994 Council advised that, on the basis of its experience with other studies, especially the intractable access project, it was desirable that the review should be conducted on a long-term basis which followed matters through into the future rather than through an examination of past cases.

Council was of the view that a short-term study would not be particularly helpful.

2.23 The Attorney-General advised on 4 May 1994 that he accepted Council's advice that the question should be a matter for a longer term study and that Council should proceed on this basis.

Convention on the Rights of the Child

2.24 Council's Committee on the Convention on the Rights of the Child conducted a full examination of the extent to which the Family Law Act 1975 complied with the Convention on the Rights of the Child (CROC) and reported to Council in February 1994. As result of this study Council was concerned that although there was general

compliance under the Act there was a need to give greater emphasis to the rights of the child in practice. Council wrote to the Attorney-General on 10 March 1994 and recommended:

That consideration be given to including in the Family Law Act a provision which acknowledges and emphasises the value and rights of children.

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2.25 This recommendation is being considered along with Council's report on the Operation of the (UK) Children Act 1989.

Simplification of Procedures of the Family Court

2.26 Several letters of advice to the Attorney-General and to the Family Court's Simplification of Procedures Committee have been sent on this issue. The Deputy Chief Justice of the Family Court, the Hon Justice A Barblett, who is Chairman of the Court's Simplification of Procedures Committee has given Council several opportunities to make written submissions (which it has done) and has also had discussions with Council on the Court's proposals. In addition, the Chairman and

the Director of Research attended a seminar conducted by the Family Court on the simplification proposals in Canberra on 18 November 1993.

2.27 Council's views have been fully considered by the Family Court during the course of the development of the simplified procedures.

Property division under the Family Law Act

2.28 A number of concerns were expressed about the recommendations of the Joint Select Committee on The Family Law Act: Aspects of its Operation and Interpretation (November 1992), particularly the departure proposals set out in recommendation 73 of that report which stated:

73. Courts should have a discretion to depart from the equality of sharing principle to take account of exceptional circumstances.

2.29 Council wrote to the Attorney-General on this matter on 15 June 1994. Council's view is that there should be an amendment to section 79(4) of the Family Law Act which would have the effect of dealing with equality of contributions (as opposed to equality of division) without producing a new system altogether. The existing section 75(2) factors would remain essentially as they are.

2.30 Council's views are being considered in relation to the preparation of the Family Law Reform Bill 1994.

SUBMISSIONS

2.31 During the year Council made submissions in response to the following:

• The Parliamentary Joint Select Committee on Certain Aspects of Family Law: The Operation and Effectiveness of the Child Support Scheme • The Inquiry by the House of Representatives Committee on Legal and Constitutional Affairs into the Australian Law Reform Commission • Attorney-General's Discussion Paper on judicial Appointments • Joint Select Committee on Certain Aspects of the Operation and

Interpretation of the Family Law Act - Family Law in Magistrates Courts.

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The matters raised in each of these submissions are set out below.

Child Support Inquiry

2.32 Council's submission addressed 4 broad areas:

The Child Support formula. Administrative issues and problems. Extension of the scheme's application. Other matters.

2.33 The formula. Council suggested that the existing formula and its variants do not ensure that:

• children have their proper needs to the extent that it does not distinguish between children of different ages once certain minimum proper needs calculated according to age have been met;

• the duty to maintain any one child is not of lower priority than the duty to maintain any other child unless it provides for all children of the payer to share in the payer's capacity to support on an equal basis or on a pro-rata basis according to age;

• the duty to maintain a child is secondary to the payer's own realistic commitments first being met;

• parents with a like capacity provide like amounts of child support because it is ’income’ based rather than ’financial resource’ based.

• children share in changes in the living standards of both parents unless it provides for the financial circumstances of all members of the payer's and payee's households to be taken into account; and

• parents share equitably in the support of their children unless it takes into account the financial circumstances of the custodial parent.

2.34 Council's submission put forward a number of ways in which formula adjustments may better enable the objects of the legislation to be met. These were: •

• Proration for all children of payer irrespective of whether or not they live in the payer's household.

• Decreasing the custodian's Disregard Income amount.

• Including fringe benefits into child support income.

• Imputing an income value to capital assets.

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• Discounting percentages applicable to children of pre-school and primary school age.

2.35 Council stressed the importance of the administrative amendment process which saves parents from incurring substantial legal costs. In Council's view the procedure needs to be both extended and monitored.

2.36 The issue of minimum payments raises the important principle of whether all non-custodial parents should contribute something to their children's support, no matter how small. Such an approach adopts 'pure' income sharing and espouses the universality of the Scheme. Under the present Scheme an assessment of less than $5 per week is deemed to be a nil assessment.

2.37 The New Zealand scheme requires a minimum payment of $10 per week, the philosophy being that this payment teaches parents to accept responsibility for their children regardless of their own economic plight.

2.38 Council as a whole supports the principle that all parents should support their children to whatever extent they can and accepts as valid the New Zealand philosophy and provision. A small minority, while endorsing the principle of contribution, accept that for fiscal reasons it may be impractical to adopt this approach

2.39 Administrative issues and problems. In Council's view, the needs of custodial parents and their children must be foremost in examining the administration of the scheme and in considering suggestions for changes to present arrangements.

2.40 In some areas administrative problems appear to have been exacerbated by the system itself. The underlying objective of the Scheme is for child support to be paid to custodial parents by non-custodial parents for the benefit of the children in their care. And yet, there is an 8 week in-built delay in the initial payment transfer process. This delay occurs in transmitting the first payment to the custodian and is caused by the cumbersome procedures imposed on the transfer of money between the CSA and the DSS. In many cases the delay can be as long as 16 weeks, rather than 8 weeks, and this appears to be due to additional administrative delays within the 2 organisations. This is not efficient administration and the system is failing to meet its basic objective because of such inefficiencies.

2.41 The main problems seem to be due to delays within the system. Prior to the first payment the first assessment needs, of course, to be made and the payer informed. This often appears to take an inordinate amount of time, as a result of which the non-custodial parent is faced with an onerous first payment covering a lengthy period. If the first amount cannot be paid (or is paid with great difficulty and/or deep resentment) a pattern of defaults begins and large amounts of arrears

builds up.

2.42 A common and recurring complaint from custodial parents is that compliance is a major problem. Widespread non-payment of child support is still the case, as it was, albeit to a greater extent, prior to the introduction of the Child Support Scheme.

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The AIFS has indicated that more than half the children surveyed in a large living standards survey who were eligible to receive payments from their non-resident parent were receiving no maintenance in 1991/2.

2.43 Although the Australian administrators of the Child Support Scheme claim to be achieving higher levels of compliance than any other child support scheme in the world, just under half the registered payees are not receiving the correct amount of support as it falls due.

2.44 Enforcement proceedings are brought pursuant to the provisions of the Child Support (Registration and Collection) Act 1987. The registered maintenance liability is a debt due to the Commonwealth (section 30) and can only be collected by and at the request of the Commonwealth. This is an unsatisfactory situation.

2.45 There are times in property proceedings or in proceedings for the enforcement of non-registered liabilities (such as school fees) where the Court obtains control over property belonging to a payer in default. It seems unnecessary to halt proceedings and invite the Commonwealth into the proceedings so that it can collect funds due to

the payee when the payee is already part of the proceedings.

2.46 The Child Support Agency, when other means of recovery have proved ineffective, uses the court system to recover outstanding child support payments. The Agency seems to move between the local court and Family Court systems almost at will and there is an impression of some uncertainty in how it approaches

enforcement.

2.47 Generally, there is an understanding in the Agency that the 2 systems differ in their ability to allow arrears accruing after filing to be added to the amount in the application or plaint but, that apart, there is a need to improve information about enforcement and the operation of the legal system within the Agency. Areas of

difficulty include:

• obtaining an order for payment in one court and seeking to enforce it in another;

• adjourning proceedings to allow the respondent to make an application for variation or discharge of a Stage I order in another court. •

• seeking a declaration of the debt due with, apparently, no intention to proceed further, possibly because it was already suspected that the respondent had no assets; the problem is not the application but, rather, the sense that the Agency is unsure of the value or use of the

remedy it has obtained

• uncertainty as to the most appropriate mode of enforcement.

2.48 Order 33 of the Family Court Rules sets out (although not exhaustively) various modes of enforcement. The Judges Rules Committee is understood to have prepared a draft of new rules to replace the existing Order 33. The modes of enforcement currently available under Order 33 suffer from a number of defects. Some of these

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are inherent in the particular remedy and some are the result of Constitutional difficulties.

2.49 As they presently stand, the modes of enforcement require a judicial determination and all that that entails, especially cost and delay. The Judges Rules Committee is considering the implementation of a report on the introduction of administrative methods of enforcement as presently exist in the various State Supreme Courts. Council's submission drew attention to some American ideas on improving the collection rate of child support which may be appropriate for Australia.

2.50 Some other administrative problems identified by members of Council included:

• difficulties in communicating with the Agency and receiving prompt, courteous, comprehensible and accurate responses; [The Child Support Agency correspondence is frequently criticised as being peremptory and unnecessarily blunt];

• unsatisfactory collection of arrears; and

• low levels of automatic withholding and a poor collection rate.

2.51 Extension of the scheme's application. Provided safeguards can be put in place to ensure no injustice occurs where parties have acted in good faith for years on other arrangements, Council considers that it is hard to see why there continues to exist two different classes of child-support children in Australia.

2.52 In Council's view, any widening of the Scheme should be accompanied by an extension of the departure grounds available to parties, to alleviate hardship by taking into account previously made financial arrangements.

2.53 Other matters. In its submission Council also raised a number of other matters for the consideration of the Joint Select Committee. These included:

• That the operation of the Child Support Review Officer Scheme should be referred to the Administrative Review Council for full examination and report.

• That the current legislation be consolidated and simplified.

• That the Family Court be empowered to grant urgent orders in the absence of administrative applications but that a sunset clause of, say 60 days, apply to such orders.

Australian Law Reform Commission Inquiry

2.54 On 29 October 1993 Council made a submission in response to the a call for submissions by the House of Representatives Standing Committee on Legal and

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Constitutional Affairs which was inquiring into the role and functions of the Australian Law Reform Commission. The Chairman, Dr Collings and Ms Mottee also appeared before the Committee to give oral evidence on 29 October 1993.

2.55 There were two main aspects of the inquiry:

(1) the role and function of the Commission as a separate and permanent law reform agency; and

(2) the relationships between the Commission and other bodies (including the Family Law Council) with a law reform or related function.

2.56 On the first matter, Council made the following suggestions:

• The development of closer ties with the Attorney-General's Department. Council outlined the advantages it had experienced from having a senior officer of the Department among its members.

• A self-referencing power for the Commission.

• Composition of the Commission. There should be more room for representation of non-lawyers on the Commission.

• Role of the President. It was Council's view that the Commission's public profile should be such that it becomes the focus of public debate on major legal issues in the public forum.

2.57 The second matter was of special concern to Council and in its submission it outlined the role of the Family Law Council, including its composition, cost, its success rate and its staffing resources. It also referred to measures which had been implemented to avoid duplication as well as arrangements for joint projects.

2.58 Council suggested to the inquiry that if the research facilities of the ALRC were not available in the family law field (for example, if the ALRC were excluded from the field) there would be a need for the Family Law Council to be provided with funds to expand its capacity for detailed research and to engage consultants to undertake research for Council as required.

2.59 Insofar as its own role is concerned, Council was of the view that its optimum value to Government was as a source of representative policy advice from "outside" the Attorney-General's Department.

2.60 Council suggested that there can be further improvements in liaison between the two bodies and development of cooperative arrangements. For example, the arrangements for joint projects needed to be modified to enable more flexible steering committee arrangements which would enable the steering committee to be called together more quickly and more often. Council also favoured the development of mechanisms whereby the Council could refer matters to the ALRC

(subject to negotiations between the two organisations) to undertake specific research tasks required in relation to Family Law Council projects.

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2.61 The Family Law Council strongly opposed the amalgamation of Council with the ALRC on the basis that such a proposal would result in the loss of the benefits offered to Government by the Family Law Council; that is, Council's capacity to provide speedy, inexpensive and representative advice on family law issues which, in the past, had proven to be generally acceptable to Government. Council was also

of the view that it is a cost effective operation, that there are considerable savings achieved by the current co-location of its secretariat with the Family and Administrative Law Branch of the Attorney-General's Department and that considerable advantages flowed from its secretariat being located within the

Department's family law policy area.

2.62 The Standing Committee released its report Law Reform: The Challenge Continues in May 1994. The following recommendations made in the Committee's report are of particular interest to Council in light of its recommendations to the inquiry:

• There is a continuing need for a commission to carry out law reform functions.

• Wherever possible officers from appropriate Departments should be included among consultants to the submission for the life of individual projects. .

• The Law Reform Commission Act 1973 should be amended to enable the Commission to provide guidelines on the processes of the Commission that may be undertaken during the course of a reference.

• The Attorney-General should have sole power to make references to the Commission and the Commission's statutory right to make suggestions about references should continue.

• The Commission should develop and maintain mechanisms to avoid wasteful duplication of effort and to foster cooperative work with the Administrative Review Council, the Companies and Securities advisory Committee, the Copyright Law Review Committee and the Family Law

Council.

• There should be joint projects between the Commission and the other law reform agencies as appropriate.

Judicial Appointments Submission

2.63 In September 1993 the Attorney-General issued a discussion paper Judicial Appointments - Procedure and Criteria and called for submissions by 1 December 1993. The discussion paper focussed on the selection process and criteria for appointment. Council's submission was finalised at its November 1993 meeting.

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2.64 The main recommendations made by Council were that there should be an independent body established by statute to advise the Attorney-General on all judicial appointments. In Council's view there was a need to give more detailed attention to what the advisory body's functions will be before the composition of the body is finalised. For example, Council considered there was a need to address

issues such as whether it will have a policy formulation role in relation to judicial appointments, the means by which it will be identifying prospective candidates for appointment (will it need to conduct interviews?) and to what extent, and to what

depth, the body will be examining the suitability of candidates for appointment.

2.65 Council recommended that appointments to the advisory body should be made on an individual basis and not as representatives of particular organisations, both genders should be equally represented on the body with representation, as far as possible, from a range of States and Territories as well as representation of

Aboriginal Australians and persons of non-English speaking backgrounds. In addition to the advisory body's members, the Chief Justice of the Court to which the appointment is to be made should be and ex officio member for the purposes of appointment to his/her Court. It should also be possible to coopt persons with expert knowledge of the specialist needs of a particular jurisdiction.

2.66 In Council's view the advisory body should be free to consult widely and there should not be any limit on who should be consulted. Council supported the use of advertising in the information gathering process and stressed the need for a range of means for identifying possible candidates. The whole process should be open.

2.67 In relation to the selection criteria, Council suggested that merit and excellence should remain the overriding criteria, but stressed that notions of "merit" and "excellence" are not necessarily neutral terms and they needed to be assessed and re­ evaluated. There should be positive encouragement of women and persons from

non-traditional backgrounds.

Family law in the Magistrates Courts

2.68 A letter of advice was sent to the Attorney-General and the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act on 17 June 1994. Council's report on family law in the Magistrates Courts was in the course of preparation when submissions were being called by the Joint

Select Committee on the administration of the Family Court. A letter of advice was sent which summarised the preliminary findings of Council's Magistrates Courts Committee on the operation of the Magistrates Courts' family law jurisdiction.

2.69 The letter of advice outlined the Committee's preliminary views on an optimum model for a family law dispute resolution service which proposes to rationalise the existing multi-tiered system . Under the proposal, the current system of Judges, Judicial Registrars, Registrars and Deputy Registrars would be collapsed

into a two tier system. The superior jurisdiction of the Family Court would be exercised by the Judges and the summary jurisdiction by the Family Court Magistrates.

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2.70 Full details of Council's proposals will be provided in its final report on this matter which is due to be completed in late 1994.

2.71 The letter of advice had the aim of informing the Joint Select Committee of Council's preliminary proposals and the whole issue of family law in the Magistrates Courts will be considered when Council's final report is submitted in late 1994.

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3. IMPLEMENTATION OF COUNCIL'S RECOMMENDATIONS

3.01 Council's Annual Report 1982-83 contained a cumulative summary of recommendations made to Government up to that time (See Annexe 5 at pages 58­ 70). Since 1982-83 Council's annual reports have only contained details of recommendations which have been implemented during the reporting year. In order to monitor progress on the implementation of its decisions, Council has included in this report a summary of the status of recommendations which have been made since 30 June 1983 and recommendations which were outstanding at 30 June 1983. In effect, this summary, if read in conjunction with the 1982-83 summary shows the

position of all recommendations made to Government by Council. In this part the text of recommendations is summarised rather than stated in full.

3.02 A number of recommendations made by Council have lapsed for a variety of reasons; for example, where the issue is negated or overtaken by subsequent developments or where a matter is further examined in a new study. Lapsed recommendations are not included in this summary.

3.03 Council proposes to continue to monitor the implementation of its advice to Government in future years and, at its meeting in May 1994, Council asked its Secretariat to provide it with a regular report on this matter. Future annual reports will indicate the status of all outstanding Council recommendations.

3.04 This part divides recommendations into four categories which are dealt with separately below:

(a) Recommendations which were finalised at 30 June 1983;

(b) Recommendations not actioned at 30 June 1983.

(c) Recommendations made in major reports between 1 July 1983 and 30 June 1994.

(d) Recommendations made in letters of advice between 1 July 1983 and 30 June 1994.

(a) Recommendations finalised at 30 June 1983

3.05 The status of all recommendations made to 30 June 1983 were set out in Annexe 5 of Council's Annual Report 1982-83 . This report contains no information on recommendations implemented at that time as action on the recommendations in question were finalised at 30 June 1983 and readers are referred to the 1982-83 report

for further information. Those recommendations which were included in the 1982-83 summary and which were still not actioned at 30 June 1983 are discussed under category (b) below.

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(b) Recommendations not actioned at 30 June 1983

3.06 Many of Council's outstanding recommendations were included in the major changes to the Family Law Act 1975 brought about under the Family Law Amendment Act 1983. However, at 30 June 1983 there were several recommendations which had not been actioned. Between 1 July 1983 and 30 June 1994, a number of those

recommendations were either fully or partly implemented. Others have still not been actioned or have been rejected. The position is summarised below.

3.07 Implemented since 30 June 1983. The following recommendations were implemented between 1 July 1983 and 30 June 1994. Where legislative change was required, the year the legislation was amended is given:

Children

Unified law of custody and maintenance of children (1987)

That the Family Court should progressively come to deal with all contested custody cases

Property

Amendment of the Act to empower the Court to order the sale of real property (1991) ·

Migrants and the Family Court

Recommendations to improve access to the Family Court and the Court counselling service.

Marriage Education

Funding for pre-marriage education.

Maintenance

Establishment of a National Maintenance Enforcement Agency (1988)

Medical reports

Exchange of medical reports intended to be used at a hearing.

3.08 Not yet implemented or rejected since 30 June 1983. The following recommendations made since 30 June 1983 have not yet been implemented. Where a recommendation is known to have been rejected this is indicated:

Maintenance

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Magistrates approval of maintenance agreements under section 87. Rejected.

Marriage Act

Sexual re-assignment and the Marriage Act 1961. Rejected.

Consolidation of the Family Law Act and the Marriage Act. Rejected.

Counselling

Provision of counselling services in the Magistrates Courts. (Note: Some regional counselling services are now provided through the Family Court. However, this whole issue is re-examined in Council's report on Magistrates and Family Law.)

Warrants

Section 64(1) warrants to become ineffective 12 months after they are issued.

(c) Recommendations made in major reports between 1 July 1983 and 30 June 1994.

3.09 Between 1 July 1983 and 30 June 1994, Council transmitted the following major reports to Government:

• Report on Maintenance Assessment and Collection (1985) • Creating Children: A uniform approach to the law and practice of reproductive technology in Australia (1985) • Administration of Family Law in Australia (1985)

• Cinderella Re-visited: Rights and Responsibilities in Step-families (1986) • Access - Some Options for Reform (1987) • Arbitration in Family Law (1988) • Child Sexual Abuse (1988)

• Representation of children in Family Court proceedings (1989) • Patterns of Parenting After Separation (1992) • Family Mediation (1992) • Interaction of Bankruptcy and Family Law (1992)

• Section 64A of the Family Law Act (1992) • Comments on the Report of the Joint Select Committee on the Operation and Interpretation of the Family Law Act (1993) • The Operation of the (UK) Children Act 1989 (1994)

• Female Genital Mutilation (1994)

3.10 Of these 15 major reports the following 7 have been examined by Government and the recommendations made in those reports have been substantially implemented: •

• Report on Maintenance Assessment and Collection (1985)

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• Creating Children: A uniform approach to the law and practice of reproductive technology in Australia (1985) • Administration of Family Law in Australia (1985) • Cinderella Re-visited: Rights and Responsibilities in Step-families (1986) • Access - Some Options for Reform (1987) • Child Sexual Abuse (1988) • Representation of children in Family Court proceedings (1989)

3.11 A number of recommendations made in the following 2 reports have also been implemented:

• Arbitration in Family Law (1988) • Family Mediation (1992)

3.12 Council's recommendations in its reports Patterns of Parenting After Separation (1992) and The Operation of the (UK) Children Act 1989 (1994) are addressed in the Family Law Reform Bill 1994 which was introduced into Parliament in June 1994.

3.13 The recommendations made in Council's report Section 64A of the Family Law Act (1992) were subsumed by those subsequently made in its report on The Operation of the (UK) Children Act 1989 the recommendations of which are addressed in the Family Law Reform Bill 1994. .

3.14 The recommendations made in Council's report Comments on the Report of the Joint Select Committee on the Operation and Interpretation of the Family Law Act (1993) were fully considered by the Government in the preparation of its response to the report of the Joint Select Committee. The Government's response is contained in

Family Law Act: Directions for Amendment (December 1993) and indicates a high degree of acceptance of Council's advice.

3.15 Council's report Interaction of Bankruptcy and Family Law (1992) is currently under consideration in relation to the preparation of bankruptcy legislation.

3.16 The report Female Genital Mutilation (1994) was transmitted to the Attorney- General in June 1994 and is under active consideration by Commonwealth and State Governments under the aegis of the Standing Committee of Attorneys-General.

3.17 Council will be monitoring progress on the implementation of recommendations which are still under consideration and will be reporting on them in future annual reports.

(d) Recommendations made in letters of advice between 1 July 1983 and 30 June 1994.

3.18 Between 1 July 1983 and 30 June 1994 a wide range of recommendations made by Council in its letters of advice to the Attorney-General have been implemented. Those recommendations which have been implemented are summarised in Appendix G of this report.

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3.19 Recommendations not actioned or rejected. A number of recommendations made by Council in letters of advice over the period 1 July 1983 to 30 June 1994 have not been actioned to date. The following are the matters which remain outstanding:

Magistrates Courts statistics. Council has made several recommendations designed to introduce uniform statistical returns in the Magistrates Courts with little success. To date Victoria is the only State which has adopted the uniform returns prepared by Council in 1991 (see Annual Report 1990-91 at

page 6). NSW currently produces basic statistics for the purposes of determining Commonwealth funding entitlements. This issue will be again addressed in Council's report on the role of Magistrates in family law.

Effect of divorce on wills. The current lack of uniformity is unsatisfactory from State to State is unsatisfactory and should be addressed by the Standing Committee of Attorneys-General (1985-86). The Queensland Law Reform Commission is currently examining the possibility of uniform succession

and testators family maintenance legislation at the request of the Standing Committee of Attorneys-General and it is expected that the effect of divorce on wills may be considered in the course of the current study.

Integration of Family Court and Federal Court. Council recommended the integration of the Family Court with the Federal Court (1986-87). Rejected.

Legal aid in child support cases. In appropriate cases, legal aid should be guaranteed to both custodial and non-custodial parents to challenge any child support assessments which significantly change existing arrangements, regardless of the normal means test for legal aid (1990-91).

Suspension of pension. A pension should not be suspended while an appeal against a decision made under section 47 of the Social Security Act is pending (1990-91). This recommendation was rejected.

Consultation with Legal Aid Bodies. Because of significant legal aid implications whenever the Family Law Rules re Costs are amended, there should be consultation with the Legal Aid Commissions before such changes are made (1990-91). Council is not aware of any effort to implement this recommendation.

De facto relationships. There appears to be no logical basis for the different treatment of de facto relationships purely on a geographical basis. Hence, there should be uniform legislation administered by one Court (1991-92).

The law which gives recognition to non-economic contributions towards the acquisition, conservation or improvement of assets should apply equally to both married and de facto couples (1991-92).

The whole issue of de facto relationships is currently before the Standing Committee of Attorneys-General.

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Child Support. A number of recommendations made by Council on the Child Support Scheme are currently being considered by a Joint Parliamentary Committee which is examining the operation of the scheme. The Joint Select Committee is expected to report in late 1994.

Magistrates. That a standard set of material be supplied to Magistrates exercising jurisdiction under the Family Law Act. This recommendation, made in 1983, has not been implemented. The issue will again be raised in Council's report on Magistrates in Family Law.

Access Handover Centres. That the South Australian Access Handover Centre should continue to be funded by the Commonwealth. The centre was closed in May 1985 and no Commonwealth funding were made available. In its response to the Joint Select Committee on Family Law in December 1993,

the Government indicated that it would further examine the question of access handover centres.

3.20 Recommendations made in 1993-94. The recommendations made in letters of advice during 1993-94 are set out in Part 2 of this report together with details of the current status of those recommendations. However, the relevant recommendations are not repeated in this part.

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4 ADMINISTRATIVE MATTERS

Mode of Operation of Council

4.01 Plenary sessions of Council are usually held on a quarterly basis. During 1993­ 94 Council met on 5 occasions. The dates and venues for meetings are listed in paragraph 5.03 below.

4.02 Council appoints ad hoc committees, using outside expertise as well as Council members, to consider specific topics requiring in depth examination. Committees meet as required between Council meetings.

Meetings 1993-94

4.03 During the year Council met as follows:

• 9 July 1993 Sydney NSW*

• 16-17 September 1993 Darwin NT • 25-27 November 1993 Adelaide SA • 10-11 February 1994 Canberra ACT • 19-20May 1994 Sydney NSW

• This meeting was timed to coincide with the First World Congress on Family Law and Children's Rights in Sydney in July 1993.

4.04 The following tentative dates were set for meetings in 1994-95:

• 4-5 August 1994 Brisbane Qld

• During the week 17-22 October 1994 Adelaide SA*

• This meeting is timed to coincide with the Sixth National Conference on Family Law in Adelaide from 17-22 October 1994.

4.05 During the year there were 26 committee meetings. Further details of meetings are given in paragraphs 5.09-5.11 below. The work of Council's committees is outlined in Part 3; Matters considered by Council 1993-94.

Membership

4.06 On 30 June 1993 the terms of office of 3 members of Council expired. Retiring members were:

• Professor Frank Bates - University of Newcastle, NSW • Mr Richard Morgan - Attorney-General's Department, Canberra, ACT • Ms Jan Williams - Marriage Counsellor, NSW

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4.07 The Attorney-General appointed, from 2 September 1993, the following members until 30 June 1996:

• Ms Louise Hansen - Aboriginal and Torres Strait Islander Commission Perth WA • Ms Patricia Moroney - Centacare (Australia), Sydney, NSW. • Mr Richard Morgan - Attorney-General's Department, Canberra, ACT

Committee system

4.08 During 1993-94 seven committees were active (that is, they met on 1 or more occasions during the year). Committees meetings held during the year were as follows:

4.09 The number of committee meetings in 1993-94 (26) was higher than in 1992-93 (14), 1991-92 (19) and 1990-91 (18). One reason for the increased number of meetings was the allocation of a full time Legal Officer to assist the Director of Research in providing support to committee members.

4.10 In addition to meetings, the work of committees is advanced through the use of telephone and fax facilities and through discussion at quarterly Council meetings. Committee reports are given routinely at quarterly Council meetings. Some of the work of committees is also resolved by circulating drafts to members for examination and written comment. Such alternatives minimise the number and cost of formal meetings.

4.11 The following additional details relating to the operation of Council's committees are set out in Appendix C:

Other Council Business

4.12 In addition to projects undertaken by Council's committees, work on the following matters was undertaken during the year:

Name of committee Medical Powers of the Family Court Child and Family Services

Magistrates' Courts Intractable Access Child Support Child's Representatives Convention on the Rights of the Child

Number of meetings 4 meetings 6 meetings 5 meetings 3 meetings 2 meetings 4 meetings

2 meetings

Committee membership Terms of reference of active projects Current status of projects

35

Simplification of Family Court Procedures The Operation of the (UK) Children Act Interstate portability of domestic violence orders

4.13 Simplification of Family Court Procedures. During the year Council continued to consult with the Family Court's Simplification of Procedures Committee. Discussions were held with the Chief Justice and the Deputy Chief Justice and the Chairman and Director of Research attended the Court's seminar on

this matter in Canberra on 18 November 1993.

4.14 In late 1993 the Family Law Council was asked to examine and report on the operation of the (UK) Children Act 1989 in the light of the Government's predisposition to depart from the current regime of guardianship, custody and access in the Family Law Act 1975 and to enact provisions based on those contained in

the (UK) Children Act. Council was also asked to review the operation of sections 64 and 64A of the Family Law Act in view of problems with the operation of those provisions. The Attorney-General asked for advice on these matters by early March 1994 and that advice is enclosed.

4.15 Earlier Council reports on Patterns of Parenting After Separation (April 1992) and Section 64A of the Family Law Act - Power of the Family Court to Require the Provision of Information for the Recovery of Children (September 1992) contain Council's previous advice on these issues.

4.16 Council consulted with a number of persons and organisations about the operation of the UK legislation, but time constraints did not permit wide consultation. Responses generally gave a positive view of the changes made in the UK Children Act.

4.17 All of Council's recommendations on these matters are set out in this report in Part 2: Advice to the Attorney-General 1993-94.

4.18 Portability of domestic violence orders In Council's Annual report 1992-93 a special report was included summarising the implementation of State and Territory legislation to enable domestic violence orders to become portable from one State or Territory to another. That report indicated that legislation was in operation in 5 States/Territories.

4.19 Council has continued to monitor progress on the implementation of legislation and the position at 30 June 1994 is summarised at Appendix F. The summary shows that legislation is now in force in all States/Territories except Western Australia.

Attorney-General

4.20 The Attorney-General, the Hon Michael Lavarch MP, met with Council at its meeting in Canberra on 10 February 1994. The Chairman also met with the Attorney-General and the Parliamentary Secretary to the Attorney-General, the Hon Peter Duncan MP, at Parliament House, Canberra on 19 October 1993 in relation to

36

implementation of the recommendations of the report of the Joint Select Committee on Family Law.

4.21 During the year Council followed its established practice of providing written reports to the Attorney-General following its quarterly meetings. Reports were sent to Mr Lavarch following each of its meetings in July 1993, September 1993,

November 1993, February 1994 and May 1994.

4.22 Council also met with the Parliamentary Secretary to the Attorney-General, the FI on Peter Duncan MP, on 11 February 1994 in Canberra to discuss implementation of the report of the Joint Select Committee on Family Law and a number of other issues.

Relationship with other bodies in family law

4.23 It is important to Council that close contact is maintained with a number of bodies in the family law field. Significant among such bodies are: the Family Court of Australia and the Family Court of Western Australia; the legal profession; the legal aid commissions; law reform bodies; and the Australian Institute of Family Studies.

4.24 In addition to the meetings and discussions referred to below, the Chairman met with the Chief Justice in Melbourne on 1 March 1994. The Chairman, Professor Graycar, Mr R J Morgan and the Director of Research met with the Australian Law Reform Commission in Sydney on 11 October 1993. The Chairman and the Director of Research also attended a seminar on Simplification of the Procedures of the Family Court conducted by the Family Court in Canberra on 18 November 1993.

4.25 During the year the Chairman has participated in a number of radio and television programs on a range of family law issues, particularly on the questions of sterilisation of children and female genital mutilation.

• The Family Court of Australia

4.26 The Chief Justice of the Family Court, the Hon Justice A B Nicholson AO RFD, has a standing invitation to meet with Council and regularly does so. Council is appreciative of the authoritative and up-to-date advice and information it receives at such meetings. Justice Nicholson attended Council meetings in Adelaide on 25 November 1993 and in Sydney on 19-20 May 1994. The Hon Justice J V Kay attended

Council's meeting in Sydney on 9 July 1993 and provided advice and assistance in relation to Council's submission to the Parliamentary Inquiry into the Operation of the Child Support System.

4.27 A number of Judges and staff of the Family Court of Australia have a close and ongoing contact with Council. The Hon Justice W B Treyvaud of the Family Court, Melbourne, has been a member of Council since 1 July 1992. Dr Carole Brown, the

Principal Director of Court Counselling, is an observer on Council and the Chief

37

Justice's Senior Legal Associate, Ms Margaret Harrison, is an observer to Council also.

4.28 The Hon Justice J V Kay, a former member of Council in 1983-84,1988-90 and 1990-92, is Convenor of Council's Child Support Committee. The Hon Justice Ian Coleman is a member of the Intractable Access Committee (a joint Family Law Council - Australian Law Reform Commission project). A number of Judges and

staff of the Court made submissions in response to Council discussion papers released during the year.

• T7ie Family Court of Western Australia

4.29 The Family Court of WA has provided an Observer on Council since the beginning of the present financial year. Mr Ron Fleming attended Council's meeting in Sydney on 9 July 1993. All subsequent meetings have been attended by the Hon Justice David Anderson of the Family Court of WA.

• The legal profession

4.30 Council's contacts with the legal profession are mainly maintained through regular meetings with the Family Law Section of the Law Council of Australia. The President, Mr Rod Burr, met with Council at its meeting in Darwin in September 1993 and President and the whole Family Law Section Executive met with Council

members in Adelaide in November 1993. Mr Chris Crowley attended Council's meeting in Canberra in February 1994.

4.31 Council expresses its thanks to Mrs Julie O'Donnell, Administrator of the Family Law Section, for her assistance during the year in arranging meetings and providing advice and assistance to Council's Secretariat.

• Legal aid agencies

4.32 Council continued to maintain its links with legal aid agencies during the year in a number of ways. Mr Andrew Crockett, Director of the Legal Aid Commission of Victoria, is a member of Council and keeps Council informed on developments in legal aid. During the current year Council has also met with State Directors of Legal

Aid as follows: Mr Jim Hartnett (SA) in Adelaide on 26 November 1993, Mr Chris Staniforth (ACT) in Canberra on 10 February 1994 and Mr Colin Neave (NSW). Mr Hartnett and Mr Neave were accompanied by the heads of their Family Law Units, Mr Graham Russell and Ms Judy Ryan respectively.

4.33 At its Canberra meeting in February 1994 Council also met with the Convenor, Mr Graham Quinlivan, and members of the Legal Aid Commissions' National Family Law Strategy Committee. This committee is composed of senior officers in the Family Law Branches of the Legal Aid Commissions (see list of members at

Appendix D). It was set up to advise the Directors of Legal Aid specifically on legal aid in family law. The committee is currently working on a five year plan for family

38

law. Following this informative and constructive meeting Council wrote to the Directors of Legal Aid with a view to establishing ongoing cooperation and contact.

• The Law Reform Commissions

4.34 The presence of an Observer from the Commission at Council meetings ensures that close links between the 2 bodies are maintained and each body is aware of relevant aspects of the work program of the other. Ms Pauline Kearney, a Project Manager with the Australian Law Reform Commission (ALRC), was the ALRC's observer on Council from November 1991 until February 1994. Council wishes to record its appreciation of the support and assistance given to it by Ms Kearney

during this period.

4.35 Council and the Commission are still working on the joint project on Intractable Access Applications. This project is managed by a steering committee made up of representatives of the ALRC, Council and the Family Court. The cost of consultants on the project is met by the ALRC, which also provides administrative support to the joint committee. Further details on the joint project are provided in Part 3: Matters

Considered by Council 1993-94. In May 1993 the Chairman of Council and the Commission President signed a memorandum of understanding relating to joint projects between the two bodies. A copy of the memorandum is set out at Appendix E to this report.

• Australian Institute of Family Studies

4.36 Ms Margaret Harrison of the Australian Institute of Family Studies (AIFS) has been an observer on Council since June 1980 and regularly attended meetings throughout the year. She is also a member of several Council committees. Her

presence on Council has mutual advantages for the AIFS and Council and ensures regular communication between the 2 bodies. Since Ms Harrison was appointed for a term as Senior Legal Associate to the Chief Justice of the Family Court of Australia she has continued to attend Council meetings and Council is grateful to the Chief Justice that Ms Harrison has been able to continue in this capacity.

4.37 From September 1993, Dr Kate Funder of the AIFS has attended Council meetings as an Observer to maintain direct ongoing contact with the Institute. At its May 1994 meeting in Sydney Council met with Ms Moira Rayner, Acting Deputy Director (Research) of the AIFS, in relation to the Child Protection Inquiry which she is currently conducting.

Family Law Council participation in other activities

4.38 Members of Council and its staff attend a number of conferences on family law each year. The main conference during the current year was the First World Congress on Family Law and Children's Rights. This conference, which was organised by the Family Law Section of the Law Council and LAWASIA's Family Law and Family Rights Section, was held in Sydney in July 1993. All Council members, Observers

39

and staff attended the conference. A number of Council members gave papers at the conference.

Council staff

4.39 The Attorney-General's Department provides Council with its resources, including staff. Council's Secretariat is a Section of the Family and Administrative Law Branch of the Department. Council has complained for some time that its Secretariat is in need of additional staff. It is necessary to repeat the statement made

in Council's Fifth Annual Report 1980-81 that without an adequate and stable Secretariat, Council, composed of part-time members, is unable to perform its statutory functions.

4.40 Council members, all of whom have busy positions, do not have the capacity to make up for inadequacies in administrative support provided by the Department. Council wishes to make it clear that its capacity and its willingness to do its job is being seriously compromised by inadequate staffing of its Secretariat.

4.41 The current permanent Secretariat staff comprises the Director of Research (Legal 2), a Legal Officer (Legal 1) and an Administrative Officer (Administrative Service Officer Class 3). During the year Council prepared and submitted a second proposal for increasing the research capacity of its Secretariat by the addition of a full-time legal researcher at Legal 1 level. This proposal has now been under examination for some time. For part of the current year, Council had on loan a non- legal Senior Professional Officer (Grade C) who provided support on Council's

projects on sterilisation of children and female genital mutilation. For a significant proportion of the period this assistance was on a part-time basis.

Financial resources

4.42 Council receives an allocation of funds from the Attorney-General's Department under the following headings each year:

• Program Costs - For costs associated with the day to day operation of Council;

• Sitting Fees - Payable at a daily rate to eligible Council members when they attend meetings of Council or Council committees or are otherwise engaged on Council business;

4.43 Family Law Council members receive travelling allowances to cover the costs of travel and accommodation associated with Council meetings. Travelling allowances have been set by the Remuneration Tribunal since 1983 and the level of these allowances from that time are given in Table 1 below.

40

TABLE 1: Family Law Council Members Travelling Allowances 1983-1994

D eterm ination No. Date of Effect AMOUNT PER DAY

Capital City Other

15 of 1983 25.11.1983 $120 $90

19 of 1984 1.7.1984 $125 $95

12 of 1985 1.7.1985 $140 $105

12 of 1986 1.7.1986 $145 $110

17 of 1987 1.1.1988 $180 $115

19 of 1988 24.11.1988 $235 $125

29 of 1990 15.11.1990 $300* $155*

These rates were current at 30 June 1994

4.44 The first determination of the Remuneration Tribunal which awarded sitting fees to Council members was also made in 1983. Sitting fees are not payable to members who are Judges, Magistrates or employees of State or Commonwealth Departments or Authorities. The levels of sitting fees from their introduction are set

out in Table 2 below.

TABLE 2: Family Law Council Members Sitting Fees 1983-1994

D eterm ination No. Date of Effect AMOUNT PER DAY

Chairperson Member

15 of 1983 25.11.1983 $261 $224

19 of 1984 1.7.1984 $304 $260

12 of 1985 1.7.1985 $312 $267

12 of 1986 1.7.1986 $324 $277

17 of 1987 1.1.1988 $343 $294

19 of 1988 24.11.1988 $400 $340

29 of 1990 15.11.1990 $446 $379

22 of 1991 15.8.1991 $457 $388

2 of 1993 19.5.1993 $473 $401

19 of 1993 21.12.1993 $482* $409*

These rates were current at 30 June 1994

4.45 Program Costs. For the 1993-94 financial year Council's allocation for program costs was $133,000, plus an amount of $15,979 for administrative expenses (see below), making a total of $148,979. Actual expenditure for the year amounted to $148,973. Travelling allowances for members and staff of Council are paid out of Council's program costs appropriation. The staff's travelling allowances are paid at the appropriate public service rates. Further details of expenditure are provided in Table 4 and Chart 1 below.

4.46 The Attorney-General's Department made an annual allocation of $15,979 for 1993-94 to cover the administrative costs of computer services and related overheads. This amount, which is included in program costs in this report, was fully expended.

41

4.47 The salaries of staff of Council are not met out of Council's funds. They are paid out of the appropriation to the Family and Administrative Law Branch of the Attorney-General's Department.

4.48 The Attorney-General's Department provides Council's staff with Macintosh Ilsi computers, Gestetner Laser printers, access to Mainframe facilities and accompanying computer software. The costs of accommodation, equipment, training and most day to day administrative expenses of Council's Secretariat are also met by the Department.

4.49 Economy Measures. Council achieved economies on its running costs during the year in a number of ways. These included:

• the regular use of economy or business class air travel by members and the various benefits obtained through Council's participation in the Attorney-General's Department travel contract with Qantas; • taking advantage of discounts for early payment of fees;

• arranging membership of committees on a geographical basis; and • confining the majority of Council and committee meetings to Sydney, Melbourne and Canberra.

4.50 From the beginning of 1993 the duration of Council meetings was reduced from 3 to 2 days. At the same time, the daily sitting hours were extended. As a result of increased productivity significant savings resulted. Savings are also achieved by holding Council meetings and Council committee meetings in the premises of the

Attorney-General's Department, the Family Court of Australia, the Australian Law Reform Commission (Sydney) and the Legal Aid Commissions. Meeting rooms and facilities are generally made available free to Council by each of these bodies. Council is also assisted financially by its Secretariat sharing facilities and equipment (such as photocopiers, fax machine and printing facilities) with the Family and Administrative Law Branch of the Attorney-General's Department.

4.60 Sitting Fees. Council is allocated funds by the Attorney-General's Department to meet the costs of sitting fees for the Chairperson and members of Council. At the beginning of the financial year the rates of sitting fees were $473 (Chairperson) and $401 (Member). These payments were increased to $482

(Chairperson) and $409 (Member) respectively from 21 December 1993.

4.61 During 1993-94, five of Council's 11 members were entitled to sitting fees. There were 5 meetings of Council during the year. One meeting was for 1 day and the others were 2 day meetings. In addition there were 26 one day committee meetings. The Chairman and some members were also called upon to attend a

number of other meetings for which sitting fees were payable (meetings with the Minister and the Chief Justice of the Family Court and appearances before Parliamentary Committees).

4.62 Expenditure on sitting fees in 1993-94 was $40,413. This compares with $31,187 in 1992-93. The increase of $9,226 in expenditure on sitting fees during the year was

42

due to the increased level of sitting fees and the greater number of committee and other meetings during the year.

4.63 Overall Expenditure 1993-94. Records of Council expenditure pre-1990 are incomplete as separate sitting fees figures are not available. However, Table 3 below sets out available data on expenditure from 1983 when sitting fees and travelling allowances for Council members were first awarded by the Remuneration Tribunal.

TABLE 3: Family Law Council - Total Expenditure 1983-84 to 1993-94

Year Expenditure on

Sitting Fees

Expenditure on Program Costs

TOTAL

EXPENDITURE

1983-84 (a) $70,596 (a)

1984-85 (a) $83,955 (a)

1985-86 (a) $67,041 (a)

1986-87 (a) $73,700 (a)

1987-88 (a) $82,000 (a)

1988-89 (a) $89,000 (a)

1989-90 (a) $81,000 (a)

1990-91 $52,236 $120,395 $172,631

1991-92 $49,040 $121,025 $170,065

1992-93 $31,187 $156,895(b) $188,082

1993-94 $40,413 $148, 973(c) $189,386

(a) Expenditure on sitting fees is not available for these years, (b) Includes $30,269 administrative expenses, (c) Includes $15,979 administrative expenses.

4.64 Total expenditure by the Family Law Council in 1993-94 was slightly higher ($1,303) than in 1992-93. Table 4 below compares expenditure for 1992-93 and 1993­ 94 under the main expenditure headings.

TABLE 4: Family Law Council - Total Expenditure 1992-93 and 1993-94

Item 1992-93

Expenditure 1993-94

Sitting Fees $31,187 $40,413

Travel & accommodation $90,060 $108,580

Printing & office supplies $28,626 $21,626

Administrative Expenses $30,269 $15,979

Incidentals & other $7,940 $2,787

TOTALS $188,082 $189,386*

Any minor discrepancy in totals is due to rounding.

43

4.65 During 1993-94 about 57% of Council's budget was used in travel and accommodation costs. Sitting fees was the next highest item of expenditure (21%). Other expenditure items tend to vary from one year to the next. The manner in which Council's funds are expended is considered to be appropriate for an advisory

body which meets regularly and operates a committee system to do much of its detailed work. Chart 1 below shows the main items of expenditure for 1993-94.

CHART 1: Family Law Council - Total Expenditure 1993-94

Incidentals and Others 1%

Administrative Expenses 8%

Printing and Office Supplies 11%

Sitting Fees 22%

Travel and Accomodation 58%

Explanatory N otes:

• Sitting Fees - In 1993-94 five members were entitled to sitting fees compared with six in 1992-93. There were 5 Council meetings (4 in 1992-93) and 26 committee meetings (14 in 1992-93). Total = $40,413. • Travel and accommodation - Covers the cost of fares, cabcharge and travelling allowances

for members ($73,054), committee members ($5,495), observers ($13,863) and staff ($16,168). Total = $108,580. • Administrative expenses - Administrative costs of com puter services. Total = $15,979. • Printing and office supplies - This mainly covers the costs of Council's photocopying and printing of reports, discussion papers and newsletters. Expenditure on printing was $17,112. Total = $21,626. • Incidentals and other - This mainly covers items such as staff training, subscriptions and

nomination fees for attendance at conferences. Total = $2,787.

Council publications

4.66 A full list of Council's reports and discussion papers is provided in Appendix B of this report. Copies of reports are generally available from the Australian Government Publishing Service. At present, persons and organisations on Council's general mailing list receive copies of reports and papers free of charge.

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• Family Law Council News

4.67 Council commenced publishing and distributing a quarterly newsletter which it named the Family Law Council News, in January 1993. During the year the News was distributed on time in July 1993, October 1993, January 1994 and April 1994. The publication has been kept to 4 pages and this does not place a large workload on Council and its Secretariat. Distribution is currently made to all Members of

Parliament and to persons and organisations on Council's general mailing list. At present over 2,000 copies are distributed each quarter.

4.68 The Chairman writes the lead article for each issue and the Director of Research is editor of the News. Other members of the Secretariat are responsible for production and distribution of the News. Names and addresses are being added regularly to the mailing list.

• Council minutes

4.69 In 1993 a 14 volume bound set of Family Law Council minutes covering the period from the inaugural meeting on 26 November 1976 to the end of 1992 was presented to the Lionel Murphy Library, Attorney-General's Department, Robert

Garran Offices, Barton ACT. Copies of minutes of Council committee meetings were included in the set, although records of the activities of some committees in the past were not available. Bound copies of the minutes are also held by Council's Director of Research and the Senior Government Counsel in the Family and Administrative Law Branch of the Attorney-General's Department. It is Council's intention that the minutes be available as an information source in the Lionel Murphy Library for research and related purposes.

4.70 In February 1994 Volume 15 of the minutes for the calendar year 1993, which covered Council minutes and Council committee minutes, was provided to the Lionel Murphy Library.

Public release of submissions to Council

4.71 At its meeting in May 1994 Council considered a report on public access to submissions made to Council in response to discussion papers. The issue arose out of a request from a journalist under the Freedom of Information Act for access to submissions made to Council in relation to its project on sterilisation and other medical procedures on children. The request placed considerable strain on the very limited resources of Council at a very busy time and resulted in some delay in more important matters.

4.72 The report set out details of current advice about release of submissions under the Freedom of Information Act which is currently sent to persons/organisations making submissions. It also outlined problems associated with the present system, the question of access under the Freedom of Information Act, resource implications and the reaction of respondents to the release of their submissions.

45

4.73 Council agreed to advise persons making submissions in future that it proposes to treat all submissions as public documents and will release them publicly (without recourse to the Freedom of Information Act) unless there are reasons in an individual case for treating a submission, or part of a submission, as confidential. This will relieve the Council's Secretariat of the responsibility of contacting all persons making submissions before releasing submissions. In light of the experience with the release

of submissions on its sterilisation project, Council does not expect that the new policy will have any serious repercussions, but it will monitor the position closely.

ACKNOWLEDGMENTS

4.74 Council particularly wishes to record its appreciation to those persons who assisted it by serving on Council committees and thereby added to the available expertise. No special fees are payable to persons who serve in this way. They are only reimbursed actual expenditure on travel, accommodation and incidentals. Persons who served in this capacity during 1993-94 were:

• Professor Frank Bates* University of Newcastle (NSW) • Ms Myolene Carrick* Catholic Family Welfare, Brisbane (QLD) • Mr Michael Habermann Solicitor, Brisbane (QLD) • Ms Jacinta Heffey* Magistrate, (VIC) • The Hon Justice J V Kay* Family Court, Melbourne (VIC) • Mr Nick O'Neill A/g President, Guardianship Board (NSW) • Mr Chris Staniforth Director of Legal Aid (ACT)

• Professor Brent Waters University of NSW • Ms Jan Williams* Social Worker (NSW) • Ms Jane Woodruff Executive Director, Autistic Association (NSW)

• Former Member of Council.

4.75 Members of Council are also grateful to persons who met with them during the year (these persons are listed in Appendix D), persons and organisations who responded to Council's discussion papers and others who gave assistance in various ways.

4.76 Council also wishes to express its thanks to Mr Frank Horwill of the Family Court for his assistance, over a number of years, in preparing the statistical summary provided in Part 5 of this report.

4.77 As indicated above Council usually meets in conference facilities provided by Government agencies free of charge. Council would particularly like to thank the Family Court of Australia, the Legal Aid Commission Victoria, the Australian Law Reform Commission and the Attorney-General's Department for the facilities made available during the past year. Council also thanks the staff of those organisations who assisted Council members with telephone, fax, photocopying and other services

during the course of meetings on their premises.

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5. STATISTICS

INTRODUCTION

5.01 The statistics presented in this report are based on information provided by the Family Court of Australia, the Family Court of Western Australia and the Australian Bureau of Statistics (ABS).

5.02 Family Court statistics. Council relies on the Family Court of Australia and the Family Court of Western Australia for most of the statistics in the report and has been assisted by officers of the court in the preparation of statistical tables. Council wishes to emphasise that it has no direct control over the collection of Family Court statistics. From 1988-89 the court has prepared its statistics on a financial year basis and from 1988-89 onwards statistics are therefore presented on that basis.

5.03 In its Annual Report 1990-91 Council drew attention to the progressive computerisation of the court through its Blackstone computer system and indicated that the figures reported by registries on the computerised system are not always directly comparable with figures reported by registries which are still operating a manual system. In the current year all registries of the Family Court of Australia, except Darwin, were computerised.

5.04 Australian Bureau of Statistics. ABS statistics on divorce are compiled using data provided by the Family Court. The data relates to all applications resulting in the grant of a decree absolute during the year. Marriage and divorce statistics are collected by the ABS on a calendar year basis and are set out accordingly in this report. Further statistical information on marriage and divorce in Australia in 1993 are available in the ABS publications 1993 Marriages Australia and

1993 Divorces Australia.

5.05 Child Support Agency. In past years, statistics on the operation of the Child Support Scheme (CSS) were provided by the Child Support Agency, Australian Taxation Office. Statistics on the CSS are not provided in this report. Full details are available in the annual report of the Commissioner for Taxation.

5.06 Magistrates courts statistics For a number of years Council has been attempting to arrange for the collection of uniform statistics on family law applications in the Magistrates Courts. Victoria is the only State which collects family law statistics using the standard format designed by Council. In that State collection of the uniform statistics began on 1 July 1991.

5.07 The previous two annual reports contained a summary of statistics provided by Victoria on the operation of the Magistrates Courts in family law in that State. These statistics are not continued in this report. Persons or organisations wishing to obtain a copy of the full statistical report on the Victorian Magistrates Courts for 1993-94, which will be available later in the year, should contact Council's secretariat to be placed on the mailing list.

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CHART 3: Marriages registered and divorces granted 1989 -1993

Marriages Registered and Divorces Granted in Australia ■ 1993

120,000

100,000

80,000

60,000

40.000

20.000

0

1989 1990 1991 1992 1993

□ Marriages

B Divorces

Marriages celebrated and dissolved

5.10 According to the Australian Bureau of Statistics, there were 113,255 marriages registered in Australia in 1993. Of the marriages registered in 1993, there were 75,968 (67%) where neither partner had previously married.

5.11 In 1993 the crude marriage rate was 6.4 per 1,000, a lower rate than the previous year (6.6). In 1993 the trend for both men and women to marry at an older age continued. The peak age at which men marry is 25-29 years and for women it is 20­ 24 years. The last 2 decades have seen an increase in the proportion of bridegrooms marrying after their 30th birthday. Men aged 30 years or more at marriage represented 44% of all men marrying in 1993 compared with 32% in 1983 and 18% in

1973. The median age of all bridegrooms in 1993 was 28.8 years.

5.12 The percentage of women marrying at 30 years or more also continued to increase. In 1973 12% of women married at 30 years of age or more, in 1983 the figure was 22% and in 1993 it was 32%. The median age of all brides in 1993 was 26.4

years.

5.13 In 1993, 37% of men who remarried had dependant children under 16 years of age, compared with 38% in 1992. For remarrying women 39% had dependant children which was the same ratio as in 1992.

Divorces granted

5.14 During 1993 a total of 48,324 marriages ended in divorce. This was an increase of 2,659 or 5.8% over 1992. The median duration between the date of marriage and the final date of separation was 7.6 years, higher than the previous year (7.4). The

49

median duration between the date of marriage and the date of decree absolute during 1993 was 10.7 years as compared with 10.5 years in 1992.

5.15 The median age at divorce for men was 39.3 years in 1993 compared with 38.7 in 1992, while the corresponding median age at divorce for women was 36.4 years in 1993 and 35.9 years in 1992.

5.16 According to the statistics collected by the Australian Bureau of Statistics, the crude divorce rate in Australia (that is, the number of divorces per 1,000 population) in 1993 was 2.7. The rate was 2.6 in 1992 and 1991 and 2.5 for the three previous calendar years.

Joint applications

5.17 Under the Family Law Act husbands and wives may apply jointly for divorce. Although this practice is relatively uncommon, its incidence had increased over the years prior to 1991 but has been steady since. In 1993,15.8% of dissolution applications were jointly made. This compares with 15.7% in 1992 and 1991.

Number of children affected by divorce

TABLE 5: Number of children involved in divorce 1989 -1993

Year Total N um ber of N um ber of Decrees Percentage of N um ber of children

decrees absolute absolute affecting decrees absolute under 18 involved children affecting children in divorce

1989 41,383 22,874 55.3% 43,317

1990 42,635 23,707 55.6% 44,913

1991 45,630 24,726 54.2% 46,697

1992 45,665 24,174 52.9% 45,704

1993 48,324 25,434 52.6% 48,055

FAMILY COURT STATISTICS

5.18 There follows a summary of the statistical returns of the Family Court of Australia and the Family Court of Western Australia, excluding statistics relating to the operation of the Court Counselling Services, which are given at the end of this part.

Waiver of court fees

5.19 The Family Courts have power under section 98A of the Family Law Act to determine proceedings for dissolution of a marriage where neither of the parties or their legal representatives are present in the court. The discretion can be used where the divorce is not opposed, there are no children of the marriage and the applicant

50

has requested it. In 1993-94 there were 10,709 such orders made by the court. This was a increase of 948 or 10% over 1992-93.

CHART 4: Percentage of Court fees waived to applications for dissolution filed

Percentage of Court Fees Waived

1993-94

1992-93

1991-92

1990-91

1989-90

0.00% 5.00% 10.00% 15.00% 20.00% 25.00% 30.00% 35.00%

5.20 A court fee of $300 is payable under regulation 11 pf the Family Law Regulations when a party files an application for dissolution of marriage. The fee can be waived or refunded in special circumstances, including where the imposition of the fee would cause hardship. During 1993-94 there were 49,392 applications for dissolution filed and 15,320 applicants were granted remissions or refunds.

5.21 The Australia wide average proportion of remissions or refunds granted during the year was 31% as compared with 31.5% for 1992-93. The Launceston Registry granted the highest rate of remissions (59.6%) during 1993-94. The lowest rate of remissions was in the Darwin Registry (20.9%).

Divorce applications made in person

5.22 Divorce applications made in person relate solely to the lodgment of divorce applications and do not indicate the proportion of in person appearances before the court. In 1993-94 there were 29,162 in person applications for divorce. Such applications are made by applicants themselves rather than through a lawyer. This was an increase of 441 over 1992-93. The proportion of in person applications dropped slightly from 59.1% to 59% of applications for dissolution made during the year.

5.23 Launceston Registry, where 88.9% of applications were made in person, had the highest rate of in person applications to overall applications for divorce in 1993-94. The lowest rate was in the Darwin Registry which had 41.4% in person applications.

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CHART 5: Percentage of in-person applications for divorce

Percentage of In-Person Applications

1993-94

1992-93

1991-92

1990-91

1989-90

0.00% 10.00% 20.00% 30.00% 40.00% 50.00% 60.00% 70.00%

_p---------- 1 -----------1 ---------- 1 -----------1 ----------

-------- [)

*--------- :.............. ;............. ;..............;.............

J - J---------- 1 -----------1 ---------- 1 -----------1 ----- , r...........................................;............. ;..... o‘---------------------- :----------:------------- 0 . r r r - = 7 ..------- γ--------- γ............?... = ? --------- ή--------- r

Court orders sought

5.24 The chart below sets out the orders sought from the Family Court in 1993-94 by the type of order. This indicates that property matters form the largest single categories of orders sought. Matters relating to children (custody/guardianship, access and child support) combined to constitute 42% of all orders sought during the year.

CHART 6: Orders sought from the Family Court 1993-94

Orders Sought from the Family Court 1993-94

O ther 17.2%

Injunctions 6.8%

■■C hild Support 2 .9%A cc ess 19.6%

52

Ancillary applications

TABLE 6: Custody/guardianship and access (all children)

Year Number of custody/guardianship Number of access

applications applications

1988-89 16,213 10,619

1989-90 18,017 12,440

1990-91 19,433 12,735

1991-92 18,207 15,377

1992-93 15,766 15,176

1993-94 16,261 16,256

TABLE 7: Custody and access (ex-nuptial children)

Year Custody/guardianship Custody/guardianship Access applic- Access applic-applications filed for applications filed for ations filed - ations filed -

all children ex-nuptial children all children ex-nuptial

children

1989-90 18,017 1,458 (8.1%) 12,440 1,073 (8.6%)

1990-91 19,433 1,983 (10.2%) 12,735 1,439 (11.3%)

1991-92 18,207 2,806 (15.4%) 15,377 2,400 (15.6%)

1992-93 15,766 3,173 (20.1%) 15,176 3,070 (20.2%)

1993-94 16,261 3,760 (23.1%) 16,256 3,633 (22.5%)

Property

CHART 7: Number of property applications filed

Number of Applications Filed for Property

1989-90 1990-91 1991-92 1992-93 1993-94

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5.25 The number of property applications in 1993-94 was 22,894. This was an increase of 936 or 4.3% over the previous year.

Order 24 conferences

5.26 In contested property matters, the parties are required to attend a conference with a Registrar or Deputy Registrar before an order can be sought from the court. Such conferences are provided for in sub-section 79(9) of the Family Law Act 1975 and are designed to enable couples to reach agreement on issues between themselves

rather than having a decision imposed on them by the court.

5.27 In 1993-94 there were 8,679 Order 24 conferences held. In 3,371 of these all the issues were resolved without going before the court. This represents a resolution rate of 38.87c. In 1992-93 the equivalent figure was 43.47o.

Maintenance

CHART 8: Number of applications filed for maintenance

Number of Applications Filed for Maintenance

1989-90 1990-91 1991-92 1992-93 1993-94

5.28 There were 277 maintenance applications in respect of ex-nuptial children in 1993-94 compared with 438 in 1992-93 and 725 in 1991-92.

5.29 The total number of maintenance claims during the year was 7,604 of which 5,106 were for spousal maintenance. Although the volume of spousal maintenance claims increased by 112 over the previous year, the volume of child maintenance applications fell from 3,476 in 1992-93 to 2,386 this year. As in recent years there was a continuing decrease in maintenance claims. The decrease this year was 978 or

11.4%.

I

54

Injunctions

CHART 9: Number of applications filed for injunctions

5.30 There were 5,798 applications reported for injunctions in 1993-94 compared with 5296 in the previous year, an increase of 502 or 8.7%. Available statistics do not provide a breakdown of the types of injunction sought.

Pre-hearing conferences

5.31 The courts conduct pre-hearing conferences before a matter finally comes before the court to ensure that the matter is ready for hearing and also to give the parties a further opportunity to reach agreement without having to go to trial. In 1993-94 there were 7,644 pre-hearing conferences held as compared with 7,067 in

1992-93. In 1,641 cases (21.5%) all of the issues were resolved without the need for the matter to go to the court. This compares with 21% in 1992-93.

Consent orders

5.32 Under Order 31 Rule 8 of the Family Law Rules, a Judge or Registrar may make an order if both parties file written consents to that order being made. This provision does not apply to dissolution or nullity of a marriage, approval of a maintenance agreement under section 87 of the Family Law Act 1975, appeals or special cases for the opinion of the Full Court.

5.33 In 1993-94, consent orders were made under Order 31 Rule 8 on 18,874 occasions as compared with 18,143 in the previous year.

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Contested matters

5.34 During 1993-94 a total of 4,016 issues were reported as finally determined by a listed contested case. The extent to which different kinds of applications continued to be contested varies from issue to issue as indicated in Table 8 below.

TABLE 8: Matters fixed for trial and finalised by agreement or judgment as a percentage of total applications

Type

1989-90

YEAR

1990-91 1991-92 1992-93 1993-94

Custody/guardianship 8% 6% 7% 8% 9%

Access 11% 10% 9% 9% 10%

Property 12% 10% 7% 8% 8%

Maintenance 11% 14% 13% 11% 12%

Injunctions 6% 8% 10% 6% 6%

Appeals

CHART 10 Number of appeals filed

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TABLE 9: Disposal of appeals

Year Heard* Withdrawn Finalised

1989-90 174 89 263

1990-91 139 60 199

1991-92 100 55 155

1992-93 96 46 142

1993-94 170 81 251

* Includes appeals which are stood over generally or otherwise settled.

5.35 The number of appeals filed during 1993-94 shows an increase of 74 (44%) over 1992-93. The number of appeals finalised during the year was 251, an increase of 109 (77%) over 1992-93. There were 69 appeals outstanding at 30 June 1994.

5.36 The highest volume of appeals filed was at the Sydney Registry where 64 appeals, or 26% of all appeals, were lodged. The next highest was at the Brisbane Registry which had 46 appeals filed, or 19% of all appeals.

5.37 Of the 243 appeals filed during 1993-94, men filed 148 applications, women filed 85 and corporations filed 7. There were 2 applications by separate representatives (of children) and 1 other application. The equivalent figures for 1992-93 were 112 men, 54 women and 3 corporations.

5.38 During the year the filing fee was collected on 157 of the 243 appeals lodged. The fee was waived on 74 applications and 12 were receiving legal aid. The filing fee was payable in respect of 65% of applications compared with 67% in 1992-93 and 64% in 1991-92.

CHART 11: Division of issues litigated on appeal (a)

1993-94

*(a) One appeal m ay involve more than one issue.

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5.39 The highest proportion of appeals was in relation to property matters as in previous years. The steady decline in the high proportion of property matters litigated in recent years was arrested during the year, with the recording of an increase in 1993-94 over 1992-93.

COURT COUNSELLING SERVICE

5.40 The Family Court of Western Australia has provided separate counselling statistics to those of the Family Court of Australia since 1986. The statistics summaries for the two courts are therefore presented separately below.

Family Court of Australia

5.41 The caseload of counsellors is divided into three groups: Court ordered privileged cases, reportable cases and voluntary privileged cases.

5.42 Privileged cases. Cases ordered by a court in which evidence of what is said in a counselling session is not admissible in any court proceedings are called privileged cases. Court ordered privileged cases occur to aid reconciliation (section 14 of the Family Law Act), where an injunction is ordered by the court, where the welfare of a child is relevant in any proceedings (section 62) and in other instances where the court or the registrar orders it (Order 24 of the Family Law Rules).

5.43 Reportable cases. Reportable cases are those where the counsellor is required to report to the court where the welfare of a child is relevant or to supervise orders of the court under sections 62A, 62(3) and 64(5) of the Family Law Act 1975.

5.44 Voluntary privileged cases. These are cases where counselling was instigated other than by court referral (sections 15 and 16 of the Family Law Act).

5.45 A comparison of cases opened in each of these three categories is made in the table below. Statistics relating to the closure of files, which were provided in previous years, are no longer maintained.

TABLE 10: Voluntary, privileged and reportable cases.

Year Voluntary privileged Court ordered privileged Reportable

OPENED OPENED OPENED

1989-90 10,667 8,836 2,140

1990-91 12,575 9,724 1,891

1991-92 14,806 10,571 1,512

1992-93 14,521 11,160 1,298

1993-94 14,518 13,125 1,207

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5.46 Voluntary counselling has consistently made up around half of the caseload of counsellors and this would seem to indicate that the public is well aware of the court's counselling facilities. The following table sets out the cases in each category as a proportion of all cases.

TABLE 11: Opened counselling cases by category

Year cases

Voluntary Privileged Reportable Total num ber of

1989-90 49% 41% 10% 21,643

1990-91 52% 40% 8% 24,190

1991-92 55% 39% 6% 26,889

1992-93 54% 41% 5% 26,979

1993-94 50% 45% 5% 28,850

Delay

5.47 At 30 June 1993 the average waiting for voluntary clients was a little under 3 weeks. For privileged cases it was about 3 weeks. .

Type of assistance

5.48 Family counselling involved about 77,400 client sessions in about 44,750 interviews in 1993-94 as compared with over 71,800 in 42,600 interviews 1992-93. Intake work involved more than a further 34,306 contacts. Information sessions and group counselling involved over 14,200 persons in 1993-94 as compared with about 8,600 in the previous year. Information provision and liaison in the community reached over 10,900 people plus an unknown number through the electronic and print media.

Court Counselling Service of Western Australia

5.49 In Western Australia the Court Counselling Service consists of the Director of Court Counselling, the Senior Court Counsellor, 11 full-time and six part-time counsellors.

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TABLE 12: Referrals to the counselling service

Year Self-referred % Court referred % Total

1989-90 1,245 53% 1,113 47% 2,358

1990-91 1,263 49% 1,296 51% 2,559

1991-92 1,536 51% 1,476 49% 3,012

1992-93 1,456 46% 2,043 54% 3,499

1993-94 1,647 42% 2,267 58% 3,914

TABLE 13: Comparison of categories of Court-referred cases

Year Counselling Conferences Reports Supervision

1989-90 13 (1%) 906 (81%) 172 (16%) 22 (2%)

1990-91 15 (1%) 1,062 (82%) 180 (14%) 39 (3%)

1991-92 10 (1%) 1,229 (83%) 198 (13%) 42 (3%)

1992-93 20 (1%) 1,295 (81%) 202 (13%) 76 (5%)

1993-94 7 (0.5%) 1,980 (87%) 218 (9.5%) 70 (3%)

TABLE 14: Telephone counselling

Year Counselling calls received ( > 15 mins.) Total calls received

1989-90 3,221 6,158

1990-91 4,004 10,074

1991-92 4,480 10,429

1992-93 6,037 14,033

1993-94 6,024 13,899

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APPENDIX A

SECTION 115 OF THE FAMILY LAW ACT 1975

(1) [Family Law Council] The Attorney-General may establish a Family Law Council consisting of persons appointed by the Attorney-General in accordance with sub-section (2).

(2) [Composition] The Council shall consist of a Judge of the Family Court and such other judges, officers of the Australian Public Service or of the Public Service of A State, representatives of marriage counselling organisations and other persons as the Attorney-General thinks fit.

(3) [Function] It is the function of the Council to advise and make recommendations to the Attorney-General, either of its own motion or upon request made to it by the Attorney-General, concerning -(a) the working of this Act and other legislation relating to family law;

(b) the working of legal aid in relation to family law; and

(c) any other matters relating to family law. .

(4) [Chairperson] The Attorney-General shall appoint one of its members to be Chairperson of the Council.

(5) [Remuneration] A member of the Council shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, the member shall be paid such remuneration as is prescribed.

(5A) [Allowances] A member of the Council shall be paid such allowances as are prescribed.

(5B) [Remuneration Tribunal Act] Sub-sections (5) and (5A) have effect subject to the Remuneration Tribunal Act 1973.

(5C) [Term of office] Subject to this section, a member of the Council holds office for such period, not exceeding 3 years, as is specified in the instrument of appointment, but is eligible for re-appointment.

(6) [Resignation] A member (including the Chairperson) may resign by writing signed and delivered to the Attorney-General.

(6A) [Termination of appointment] The Attorney-General may terminate the appointment of a member by reason of the misbehaviour, or physical or mental incapacity, of the member.

(6B) [Bankruptcy] If a member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her

61

creditors or makes an assignment of his or her remuneration for their benefit, the Attorney-General shall terminate the appointment of the member.

(7) [Meetings] Meetings of the Council shall be convened by the Chairperson or the Attorney-General.

(8) [Records] The Council shall cause records to be kept of its meetings.

(9) [Report to be furnished] The Council shall, as soon as practicable after 30 June in each year, prepare and furnish to the Attorney-General a report of the operations of the Council during the year that ended that 30 June.

(10) [Report to be laid before Parliament] The Attorney-General shall cause a copy of a report furnished under sub-section (9) to be laid before each House of Parliament within 15 sitting days of that House after receipt of the report by the Attorney-General.

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The committee examined all submissions and prepared its report which was transmitted to the Attorney-General on 15 June 1994. The report was subsequently tabled in Parliament and released publicly in late June 1994. Details of Council's recommendations of Female Genital Mutilation are set out at paragraphs 2.04 - 2.05

of this report.

The Committee has completed its work on Female Genital Mutilation.

2. Due to Council's limited resources, a good deal of the work on the child and family services project was deferred to allow the committee to give priority to its reference on female genital mutilation.

However, progress was made during the year on a number of fronts. The committee has sent introductory letters to relevant State, Territory and Commonwealth authorities advising them of the terms of reference and other background details of the study. It has also undertaken the following work:

• The collation of background research material; • Preparation of comparative summaries of legislation and practice in a number of areas of child and family services; • Preparation of a number of internal papers on the operation of State,

Territory and Commonwealth legislation; • An examination of the child services aspects of the Family Law Reform Bill 1994; and • Preparation of a theoretical model for the purposes of analysing existing

services and developing alternatives.

3. Magistrates Courts Committee

A. Members

Mr Andrew Crockett Convenor Associate Professor Regina Graycar Ms Jacinta Heffey * Magistrate The Hon Justice Sallv Thomas

Mr Bill Hughes Director of Research Mr Peter Trahair Secretariat

B. Project

Family Law in the Magistrates Courts

C Terms of reference

The committee's terms of reference are set out at pages 34-35 of Council's Annual Report 1992-93.

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D. Current status of project

The consultation process on this project was twofold. First, a consultation letter and questionnaire were forwarded to a number of organisations, agencies and individuals who were identified as having an interest in the project. A press advertisement was placed in The Australian which outlined the scope of the reference and a media release was also issued. The purpose of the first stage consultation was to identify the main issues for consideration. Council received 68 completed questionnaires.

In October 1993 Council released a discussion paper for public comment. Submissions closed at the end of February 1994. Council received 23 submissions. The views expressed by respondents are being considered by the Magistrates Courts Committee which, at the end of the reporting year, was preparing its final report to the Attorney-General.

Council expects to be transmitting its report to the Attorney-General before the end of 1994.

4. Intractable Access Committee (Joint project with the Australian Law Reform Commission)

A. Members

Family Law Council Mr John Faulks Chairman Ms Margaret Harrison Ms Jan Williams * Social worker

Australian Law Reform Commission The Hon Justice Elizabeth Evatt AO Ms Sue Tongue Deputy President Professor Rebecca Bailey-Harris Commissioner Mr Chris Sidoti Commissioner Associate Professor Regina Gray car Commissioner Ms Mary Fisher Project Manager

Family Court of Australia The Hon Justice Ian Coleman

B. Project

Intractable Access Applications in the Family Court

G Terms of reference

The background to the establishment of the joint Family Law Council/Australian Law Reform Commission project on Intractable Access Applications is set out at page 23 of Council's Annual Report 1991-92.

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D. Current status of project

Administrative support for the project is provided by the Australian Law Reform Commission and work is under direction of a steering committee on which Council, the Commission and the Family Court are represented.

Consultants on the project are Dr Graeme Russell, Dr Judy Cashmore and Ms Nicola de Haas. During the year they have been studying cases which have been identified as meeting the project's definition of "intractable". This has included examination of files, interviews with parents and examination of legal aid assistance. Issues relating

to such matters as interviewing children and the representative nature of the sample of cases examined are currently being examined and the consultants' research findings are not yet complete.

When the report on the research findings is available to the steering committee, it is expected that possible solutions will be considered and recommendations developed with the aim of reducing the incidence of intractable access cases and improving procedures for processing such cases.

5. Child Support Committee

A. Members

The Hon Justice J V Kay * Convenor Family Court of Australia* Mr John Faulks Chairman Ms Margaret Harrison

B. Project

The Child Support Scheme.

G Terms of reference

To monitor the operation of the Child Support Scheme.

D. Current status of project

This committee monitors the operation of the Child Support Scheme by regular consultation with the Department of Social Security and the Australian Taxation Office. This contact continued during the year and the Convenor provided Council with reports on the committee's discussions.

6. Child's Representatives Committee

A. Members

Dr Nigel Collings Convenor

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Ms Jenny Bedlington Dr Carole Brown Associate Professor Regina Graycar Mr Michael Habermann Solicitor, Brisbane Mr Chris Staniforth Director of Legal Aid, ACT The Hon Justice W B Treyvaud

Mr Peter Trahair Secretariat

B. Project

The representation of children in the Family Court.

G Terms of reference

The Child's Representatives Committee was formed on 17 December 1993. The Committee's terms of reference are as follows:

1. That the role of the Child's Representative be examined on the basis of the child's rights and best interests taking into account the UN Convention on the Rights of the Child, the Government response to the Joint Select Committee's recommendations and any resource implications;.and

2. That an analysis of the current law relating to the role of the child's representative be undertaken with an emphasis on an examination of current Australian and overseas legislation, case law and practice.

3. That options for reform of the role of the child's representative be identified including, but not restricted to;

- guidelines for the appointment and conduct of child representatives, and

- options for required training.

D. Current status of project

The committee is undertaking a consultative process with interested parties including bodies such as children's interests bodies, the Family Court, professional legal and medical organisations, State and Territory Government departments and legal aid commissions and other relevant non Government organisations.

The report will deal with issues such as the relevance and application to domestic law of the United Nations Convention on the Rights of the Child, the Joint Select Committee Report on Certain Aspects of the Operation and Interpretation of the Family Law Act, the proposed Family Law Reform Bill 1994, the UK Children Act 1989, an analysis of the current system of child's representation including legislation, case law and practice, an analysis of child's rights and bests interests issues in the context of representation, guidelines for appointment, training and accreditation and options and recommendations for reform.

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It is anticipated that a report will be submitted to the Attorney-General in 1994-95.

7. Convention on the Rights of the Child Committee

A. Members

The Hon Justice Sally Thomas Convenor Dr Nigel Collings The Hon Justice W B Treyvaud

B. Project

The (UN) Convention on the Rights of the Child.

G Terms of reference

At its meeting on 9 July 1993 Council established a committee to examine the Family Law Act 1975 to see to what extent it complied with the Convention on the Rights of the Child (CROC), to which Australia is a signatory.

D. Current status of project

The committee examined individual articles of the CROC in relation to the provisions of the Family Law Act. In general the committee concluded that the legislation complied with the Convention, but the committee identified some other legislation which seemed to be at variance with a number of Articles of the CROC.

The Committee completed its task during the year. A letter of advice was sent to the Attorney-General on 10 March 1994 and further details are provided at paragraphs 2.24 - 2.25 of this report.

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PERSONS AND ORGANISATIONS WHO HAVE MET WITH COUNCIL 1 JULY 1993 - 30 JUNE 1994

APPENDIX D

9 July 1993 - Sydney

This meeting was held following the First World Congress on Family Law and Children's Rights at which Council members met with a wide range of judges, lawyers and others from within Australia and overseas.

Executive members of the Family Law Section of the Law Council of Australia.

16-17 September 1993 - Darwin

Mr Rod Burr President, Family Law Section, Law Council of Australia Ms Sally Griffin Child Support Review Officer (NT) Mr Stephen Ralph & Ms Margaret Cunningham Family Court Counselling Service, Darwin. Council also met informally with local family law practitioners.

25-27 November 1993 - Adelaide

The Hon Justice A B Nicholson AO RFD Chief Justice, Family Court of Australia Mr Jim Hartnett (Director) and Mr Graham Russell - Legal Services Commission of SA The President and members of the Family Law Section of the Law Council of Australia:

Mr Rod Burr President Ms Jenny Boland Ms Fran Brennan Mr Chris Crowley Mr Michael Foster Mr Stuart Fowler Mr Michael Habermann Mr Ian Kennedy Mr Michael Taussig Mr Phil Theobald Mr Michael Watt Ms Julie O'Donnell Section Administrator

10-11 February 1994 - Canberra

The Hon Michael Lavarch MP - Attorney-General The Hon Peter Duncan MP - Parliamentary Secretary to the Attorney-General Mr Chris Staniforth - Director, Legal Aid Office (ACT)

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Members of the Legal Aid Commissions' National Family Law Strategy Committee:

Mr Graham Quinlivan Ms Judy Ryan Ms Ruth Siegel Mr Don Gassner

Mr Andrew Wiedmann Mr Bruce Doyle Mr Graham Russell Ms Rhonda Griffith

Mr Peter Gibson Ms Jo Battersby

Queensland Convenor NSW Victoria Tasmania

Tasmania NT SA WA OLAFS, Canberra ACT

Executive Officer, Legal Aid Commission Directors' Secretariat

26-27 May 1994 - Sydney

The Hon Justice A B Nicholson AO RFD - Chief Justice of the Family Court Mr Colin Neave - Director, Legal Aid Office (NSW) Ms Judy Ryan - Manager, Family Law Section, Legal Aid Office (NSW) Ms Moira Rayner - Child Protection Inquiry

I

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APPENDIX E

MEMORANDUM OF UNDERSTANDING BETWEEN THE FAMILY LAW COUNCIL AND THE AUSTRALIAN LAW REFORM COMMISSION

1. The Family Law Council is established under the Family Law Act as a body to advise the Attorney-General in matters relating to Family Law. It has a broad membership, partly specified by the Act, consisting of representatives of the Family Court, the legal profession, counsellors and other community agencies and interests. It has a wide range of knowledge and experience in all aspects of family law. It is a part-time body with a small secretariat, located within the Family [and Administrative] Law Branch of the Attorney-General's Department.

2. The Law Reform Commission is a permanent agency, set up as a body corporate by the Law Reform Commission Act 1973. Its functions are to review laws and to make reports and recommendations to the Attorney-General in pursuance of matters referred to the Commission by the Attorney-General. It has 3 full-time Commissioners and about 34 permanent staff as well as part­ time Commissioners. The Commission can deal with any matter of Commonwealth law (or laws of the Territories). Its membership usually includes people with expertise in one or more of the areas on its current agenda.

3. There is an overlap of the areas of concern to the Family Law Council and those which can be referred by the Attorney-General to the Law Reform Commission. The Law Reform Commission has undertaken a number of references which concern family law (e.g. Contempt, Matrimonial Property, Domestic Violence). The two agencies have maintained formal and informal contacts since 1976. Since 1990 a representative of the Law Reform Commission has attended meetings of the Family Law Council as an observer.

4. The Family Law Council and the Law Reform Commission are at present conducting a joint project on "Intractable Access". They have discussed possible ways of initiating further joints projects which would enable the Law Reform Commission to allocate resources to family law projects agreed to by both agencies and approved by the Attorney-General.

5. The proposed procedure for the initiation and conduct of joint projects is as follows:

(i) Projects could be initiated at the suggestion of either agency; the nature, scope and funding of a project are to be agreed by both agencies and submitted to the Attorney-General for approval.

(ii) The Commission would establish a Division for the purposes of an agreed project. (A Division of the Commission consists of two or more members and is, for the purposes of the project, "The Commission".) The agencies

73

shall establish for each joint project a joint committee for overseeing the project.

(iii) The agencies are to agree as to the staff requirements of a joint project, on the need for any outside consultancy, and on how staff would be supervised.

(iv) The method of organising the project, the timetable, the proposed community consultation process and the proposed publication would be agreed by the agencies.

(v) The agencies would make decisions jointly and would aim at reaching a consensus view. The report to the Attorney-General would be a joint document.

(sgd) Elizabeth Evatt (sgd) John Faulks

President Chairman

5 May 1993

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INTERSTATE PORTABILITY OF DOMESTIC VIOLENCE ORDERS

In its last Annual Report Council included a Special Report on Interstate Portability of Domestic Violence Orders. This report gives the position of State and Territory legislation at 30 fune 1994.

APPENDIX F

Overview

At 30 June 1994, all States, except Western Australia, had passed legislation to implement the interstate portability of domestic violence orders.

In Western Australia, the preparation is understood to have been delayed by the State elections and there is no legislation currently on the legislative program. Progress will be monitored.

In the other States/Territories legislation has come into operation from the following dates:

ACT Tasmania Victoria South Australia Queensland New South Wales Northern Territory

3 August 1992 6 August 1992 30 September 1992 4 March 1993 28 May 1993

1 August 1993 1 January 1994

Further details are given on a State by State basis below.

New South Wales

Amending Act:

Assent: Principal Act: Commencement:

Crimes (Registration of Interstate Restraint Orders) Amendment Act 1993. Act No. 6 of 1993. 14 April 1993 Crimes Act 1900. A proclamation has been issued under section 2 of the Amending Act. which brought the Act into effect on 1 August

1993.

75

Victoria

Amending Act:

Assent: Principal Act: Commencement:

Queensland

Amending Act:

Assent: Principal Act: Commencement:

South Australia

Amending Act:

Assent: Principal Act: Commencement:

Crimes (Family Violence)(Further Amendment) Act 1992. Act No. 34 of 1992. 16 June 1992. Crimes (Family Violence) Act 1987. To commence on a date to be proclaimed under section 2 of the Amending Act.

The Act was proclaimed to commence on 30 September 1992. (Government Gazette of 23 September 1992 at page 2787).

Domestic Violence (Family Protection) Act Amendment Act 1992. Act No. 46 of 1992. 19 August 1992. Domestic Violence (Family Protection) Act 1989. To commence on a date to be fixed by proclamation under

section 2 of the Amending Act. The Act was proclaimed to commence from 28 May 1993. The proclamation was gazetted on 21 May 1993.

Summary Procedure (Summary Protection Orders) Amendment Act 1992. Act No. 75 of 1992. 26 November 1992. Summary Procedure Act 1921. To come into operation on a date fixed by proclamation under

section 2 of the Amending Act. Following the making of the Summary Procedure (Summary Protection Orders) Regulations 1993, the commencement date was set as 4 March 1993.

Western Australia

No legislation has been introduced to date. It is understood that legislation has preliminary approval but that it is not yet on the legislative program.

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Tasmania

Amending Act: Justice Legislation Amendment (Domestic Violence) Act 1992. Act No. 21 of 1992. Assent: Principal Act: Commencement:

6 August 1992. Justices Act 1959. The Act commenced on the date on which it received the Royal Assent i.e. 6 August 1992.

Northern Territory

Amending Act: Assent: Principal Act: Commencement:

Domestic Violence Act 1992. Act No. 67 of 1992. 14 December 1992. Domestic Violence Act 1992. The Administrator, by notice in the Gazette, fixed the date of commencement of the Act as 1 January 1994.

Australian Capital Territory

Amending Act: (1) Protection Orders (Reciprocal Arrangements) Act 1992. Act No. 36 of 1992. (2) Protection Orders (Reciprocal Arrangements)(Consecjuential Amendments) Act 1992. Act No. 37 of 1992. Assent:

Principal Act: Commencement:

Notified in ACT Gazette S103 of 8 July 1992. Domestic Violence Act 1986. To commence on a date fixed by the Minister and notified in the Gazette. The commencement date was fixed as 3 August 1992. (ACT Gazette S130 of 27 July 1992).

77

COUNCIL RECOMMENDATIONS IN LETTERS OF ADVICE IMPLEMENTED 1 JULY 1983 - 30 JUNE 1994 *

* Note: Recommendations made in major reports are not included in this summary.

Family Law Council

Provision of more staff for Council's Secretariat (1992-93).

Improvements in the process for consulting with Council on policy issues and legislation (1990-91,1993-94)

Family Court

New accommodation for the Family Court in Darwin (1993-94)

Several recommendations on the power of the Family Court to order psychiatric, psychological or medical examinations or treatment (1992-93).

Advice on simplification of procedures of the Family Court (1992-93,1993-94)

Changes to the Family Court's Application for Dissolution of Marriage (1992-93).

There should be no filing and setting down fees in the Family Court (1991-92).

Funding for the Victorian Court Information and Welfare Network (1990-91).

Retention of the Family Court as a separate Court (1987-88)

Simplified pleadings in the Family Court (1987-88).

Improved interpreter services in the Family Court. (1985-86)

Public education programs in the Family Court. (1983-84)

Computerisation of Family Court statistics (Several reports).

Children

Support for the ALRC's pilot project on closed circuit TV for taking evidence for children (1992-93).

Various aspects of proposals for the implementation of a child support scheme (1987­ 88)

APPENDIX G

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Passports and international child abduction (1987-88)

In 1983-84 Council recommended that Australia accede to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention came into force in Australia on 1 January 1987.

Introduction of child agreements (1986-87)

Introduction of a summary procedure to enable speedy hearings of breaches of access orders. (1984-85)

Domestic violence

Portability of protection for victims of domestic violence (1990-91).

Legislation

Advice on legislative changes contained in the following Bills;

Family Law Amendment Bill 1983 Family Law Amendment Bill 1987 .

Law and Justice Amendment Bill 1988 Courts and Tribunals Administration Amendment Bill 1989 Family Law Amendment Bill 1989 Law and Justice Legislation Amendment Bill 1990 Family Law Amendment Bill 1991 Family Law Amendment Bill (No 2) 1991 Courts (Mediation and Arbitration) Bill 1991 Law and Justice Legislation Amendment Bills 1992

Powers of arrest

Police powers of arrest under the Family Law Act (1989-90)

Sentencing

Improved sentencing options under the Family Law Act (1986-87)

Community service and periodic detention as sentencing options in the Family Court (1985-86)

Other matters

Common law doctrine of contempt and access (1987-88).

Improvements to sections 86 and 87 agreements (1986-87).

Increased marriage counselling funding(1985-86)

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Improvements in legal aid in family law. (1985-86)

Pilot program on family dispute resolution centres. (1983-84)

T H E P A R L IA M E N T O F TH E C O M M O N W E A LT H O F A U S T R A L IA

PARLIAMENTARY PAPER No. 334 of 1994 O R D E R E D TO BE P R IN TE D

IS S N 07 27-418

A50922 Cat. No. 94 2814 5