Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Hansard source

The amendments are not accepted, but I will briefly respond to some of the points made. I do not consider it appropriate to specifically add the failure to fulfil parental responsibility as a factor to be considered when determining whether the presumption of equal shared parental responsibility applies. A failure to fulfil parental responsibility has been strengthened in the best interest factors that the court must consider. It is not appropriate to place additional weight on consideration of this factor compared to others.

The bill seeks to address concerns about false allegations and false denials by the inclusion of the new cost provision that applies where a person has knowingly made false allegations or a false statement—and this clearly also covers false denials. This provision implements a committee recommendation. It is appropriate, given the high test that must be satisfied: a person must knowingly make the false statement. In such circumstances criminal penalties could also be applied.

On the issue of modification of enforcement provisions, I do not consider it is appropriate to implement the opposition amendment to limit the capacity of the court to take into account parenting plans or to vary existing parenting orders to those orders made since the commencement of the provision. It is appropriate for the court to consider what has been agreed since the parenting order was made. The new approach to disputes based on attendance at dispute resolution is likely to result in more agreements. Where a person has been acting for some time in accordance with an agreement, it is appropriate that this be taken into account when they are later faced with compliance action. This will encourage increased flexibility and provide a means for parents with existing orders to seek to revise those agreements without going back to the court.

In relation to less adversarial proceedings, I think the proposals that the member has in mind would be likely to undermine our quest to change the culture. We consider that contravention applications which often result in the need to vary parenting orders are likely to benefit from consideration in an environment that is child focused and less adversarial. Judges will still have the responsibility for managing these proceedings. In exceptional cases where criminal penalties may be warranted, the existing rules of evidence of course can be applied.

Finally, on the provision of additional information, the bill will insert a new part into the Family Law Act that requires lawyers, court counsellors and dispute resolution practitioners to provide information to separating people on the court’s processes and services. The amendment proposed by the opposition would affect the balance of this information to emphasise court processes. The proposed amendment would not assist in encouraging the cultural change. It would help lawyers, not children. For these reasons, we oppose the measures, but I do thank the honourable member for her constructive consideration of these matters and the amendments she has proposed, which we have looked at quite seriously.

Question negatived.

by leave—I present a supplementary explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005. I move amendments (1) to (27) together:

(1)    Clause 2, page 3 (at the end of the table), add:

11.  Schedule 10

The day on which this Act receives the Royal Assent.

(2)    Schedule 1, item 4, page 5 (lines 6 to 12), omit the note.

(3)    Schedule 1, item 4, page 5 (after line 12), at the end of the definition of major long-term issues, add:

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

(4)    Schedule 1, item 9, page 9 (line 1), omit “having contact”, substitute “spending time with and communicating”.

(5)    Schedule 1, item 9, page 10 (after line 12), after subsection 60CC(4), insert:

     (4A)    If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

(6)    Schedule 1, item 9, page 11 (line 12), omit “inform the court of the child’s views”, substitute “ensure that the child’s views are fully put before the court”.

(7)    Schedule 1, item 11, page 13 (after line 30), after paragraph (8)(a), insert:

           (aa)    a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution;

(8)    Schedule 1, item 11, page 17 (line 11), after “alleges”, insert “, as a consideration that is relevant to whether the court should grant or refuse the application,”.

(9)    Schedule 1, item 11, page 17 (after line 19), after paragraph 60K(1)(c), insert:

   ; and (d)    the document is a document of the kind prescribed by the applicable Rules of Court for the purposes of this paragraph.

(10)  Schedule 1, item 11, page 17 (lines 20 and 21), omit “The document referred to in paragraph (b) may be the application itself or another document.”.

(11)  Schedule 1, item 11, page 17 (lines 22 to 30), omit subsection 60K(2), substitute:

        (2)    The court must:

             (a)    consider what interim or procedural orders (if any) should be made:

                   (i)    to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and

                  (ii)    to protect the child or any of the parties to the proceedings; and

             (b)    make such orders of that kind as the court considers appropriate; and

             (c)    deal with the issues raised by the allegation as expeditiously as possible.

     (2A)    The court must take the action required by paragraphs (2)(a) and (b):

             (a)    as soon as practicable after the document is filed; and

             (b)    if it is appropriate having regard to the circumstances of the case—within 8 weeks after the document is filed.

(12)  Schedule 1, item 11, page 18 (after line 3), at the end of section 60K, add:

        (5)    A failure to comply with a provision of this section in relation to an application does not affect the validity of any order made in the proceedings in relation to the application.

(13)  Schedule 1, page 20 (after line 8), after item 16, insert:

16A  After subsection 63C(1)

Insert:

     (1A)    An agreement is not a parenting plan for the purposes of this Act unless it is made free from any threat, duress or coercion.

(14)  Schedule 1, item 25, page 25 (after line 32), at the end of section 64D, add:

        (3)    Without limiting subsection (2), exceptional circumstances for the purposes of that subsection include the following:

             (a)    circumstances that give rise to a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

             (b)    the existence of substantial evidence that one of the child’s parents is likely to seek to use coercion or duress to gain the agreement of the other parent to a parenting plan.

(15)  Schedule 1, item 43, page 32 (line 24), omit “amendment made by item 16 applies”, substitute “amendments made by items 16 and 16A apply”.

(16)  Schedule 3, item 8, page 69 (lines 3 to 5), omit the item, substitute:

8  Application of amendments

The amendments made by Part 1 of this Schedule apply:

             (a)    to proceedings commenced by an application filed on or after 1 July 2006; and

             (b)    to proceedings commenced by an application filed before 1 July 2006, if the parties to the proceedings consent and the court grants leave.

(17)  Schedule 4, item 64, page 105 (line 5), after “purposes”, insert “of”.

(18)  Schedule 4, page 116 (after line 15), after item 113, insert:

Income Tax Assessment Act 1997

113A  Subsection 30-70(1) (table item 8.1.1)

Repeal the item, substitute:

8.1.1	a public fund established and maintained by a *non-profit company solely for the purpose of providing money to be used in giving or providing marriage education under the Marriage Act 1961 to individuals in Australia	see section 30-75
8.1.2	a public fund: (a) that is established and maintained by a *non-profit company which receives funding from the Commonwealth to provide family counselling or family dispute resolution within the meaning of the Family Law Act 1975; and (b) that is established and maintained solely for the purpose of providing money to be used in providing family counselling or family dispute resolution within the meaning of the Family Law Act 1975 to individuals in Australia	none

(19)  Schedule 4, page 116, after proposed item 113A, insert:

113B  Section 30-75

Repeal the section, substitute:

30-75  Marriage education organisations must be approved

                 You can deduct a gift that you make to a public fund covered by item 8.1.1 of the table in subsection 30-70(1) only if the company has been approved by the Minister under section 9C of the Marriage Act 1961.

(20)  Schedule 4, page 125 (after line 26), after item 138, insert:

138A  Application of amendments of the Income Tax Assessment Act 1997

The amendments made by items 113A and 113B of this Schedule apply to gifts made on or after commencement.

(21)  Schedule 5, item 5, page 129 (line 13), omit “and inform the court of that view”.

(22)  Schedule 5, item 5, page 129 (line 16), omit “Without limiting paragraph (2)(a), the”, substitute “The”.

(23)  Schedule 5, item 5, page 129 (lines 28 and 29), omit paragraph 68LA(5)(b), substitute:

             (b)    ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

(24)  Schedule 6, item 1, page 134 (after line 15), after paragraph 68N(a), insert:

           (aa)    to ensure that orders, injunctions and arrangements of the kind referred to in subparagraph (a)(ii) do not expose people to family violence; and

(25)  Schedule 9, item 17, page 168 (lines 8 to 11), omit the item.

(26)  Schedule 9, item 42, page 173 (lines 3 to 5), omit the item.

(27)  Page 180, at the end of the Bill, add:

Schedule 10—Orders of non-judicial officers of State courts of summary jurisdiction

Family Law Act 1975

1  At the end of subsection 39(6)

Add:

Note:   Under section 39A of the Judiciary Act 1903, the jurisdiction conferred by this subsection on a State court of summary jurisdiction may only be exercised by certain judicial officers of the court.

2  At the end of subsection 69J(1)

Add:

Note:   Under section 39A of the Judiciary Act 1903, the jurisdiction conferred by this subsection on a State court of summary jurisdiction may only be exercised by certain judicial officers of the court.

3  After Part XIVA

Insert:

Part XIVB—Orders of non- judicial officers of State courts of summary jurisdiction

114MG  Definitions

        (1)    In this Part:

federal family jurisdiction means jurisdiction in relation to matters arising under this Act.

ineffective order has the meaning given by section 114MH.

liability includes a duty or obligation.

non-judicial officer of a court of summary jurisdiction of a State means an officer of the court who is not a magistrate, or arbitrator, of the kind referred to in paragraph 39(2)(d) of the Judiciary Act 1903.

proceedings includes an initiating application.

proceedings for the order in relation to an ineffective order means the proceedings in or in relation to which the order was purportedly made.

right includes an interest or status.

        (2)    A reference in this Part to an ineffective order of a court of summary jurisdiction is a reference to an ineffective order that a non-judicial officer of that court purported to make.

114MH  Meaning of ineffective order

        (1)    A reference in this Part to an ineffective order is a reference to a purported order described in subsection (2). This subsection has effect subject to subsection (3) as it affects the meaning of a reference to an ineffective order in the context of a particular case.

        (2)    An order that a non-judicial officer of a court of summary jurisdiction of a State has purported to make is an ineffective order if:

             (a)    the officer purported to make the order before the commencement of this Part; and

             (b)    the order was made in the exercise, or purported exercise, of the court’s federal family jurisdiction.

        (3)    If a court, or a non-judicial officer of a court of summary jurisdiction of a State, has purported to affirm, vary, revoke, set aside, reverse, revive or suspend an ineffective order, a reference in this Part to the ineffective order is a reference to the order in the form in which, and to the extent to which, it purports or purported to have effect from time to time.

114MI  Rights and liabilities declared in certain cases

                 The rights and liabilities of all persons are, by force of this section, declared to be, and always to have been, the same as if each ineffective order of a court of summary jurisdiction had been an order made by that court, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.

114MJ  Effect of declared rights and liabilities

        (1)    A right or liability conferred, imposed or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction:

             (a)    is exercisable or enforceable; and

             (b)    is to be regarded as always having been exercisable or enforceable;

as if it were a right or liability conferred, imposed or affected by an order made by that court, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.

        (2)    The rights and liabilities conferred, imposed or affected by section 114MI include (but are not limited to) the right of a person who was a party to the proceeding or purported proceeding in which the ineffective order was made to appeal against that order.

        (3)    In this section:

enforceable includes able to be dealt with by proceedings under:

             (a)    Division 13A of Part VII; or

             (b)    Division 2 of Part XIIIA;

relating to a contravention of an order.

114MK  Effect of things done or omitted to be done under or in relation to rights and liabilities

        (1)    Any act or thing done or omitted to be done before or after the commencement of this Part under or in relation to a right or liability conferred, imposed or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction:

             (a)    has the same effect, and gives rise to the same consequences, for the purposes of any written or other law; and

             (b)    is to be regarded as always having had the same effect, and given rise to the same consequences, for the purposes of any written or other law;

as if it were done or omitted to be done to give effect to, or under the authority of, or in reliance on, an order made by that court, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.

        (2)    Subject to subsection (3), for the purposes of an enforcement law (see subsection (4)), any act or thing done or omitted to be done before or after the commencement of this Part:

             (a)    gives rise to the same consequences; and

             (b)    is to be regarded as always having given rise to the same consequences;

as if each ineffective order of a court of summary jurisdiction were an order made by that court, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.

        (3)    If, before the commencement of this Part, a court purported to convict a person of an offence against an enforcement law on the basis that an ineffective order was a valid order, nothing in this section is to be taken to validate or confirm that conviction.

        (4)    In this section:

enforcement law means a provision of a law of the Commonwealth, other than a law relating to contempt of court, that sets out a consequence for a person if the person:

             (a)    contravenes; or

             (b)    acts in a specified way while there is in force;

an order, or a particular kind of order, made by a court exercising federal family jurisdiction (whether or not the provision also applies to other orders of courts).

114ML  Powers of courts in relation to declared rights and liabilities

        (1)    A court may vary, revoke, set aside, revive or suspend a right or liability conferred, imposed or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction as if it were a right or liability conferred, imposed or affected by an order made by that court of summary jurisdiction, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.

        (2)    In addition to its powers under subsection (1), a court (the review court) also has power to make an order achieving any other result that could have been achieved if:

             (a)    the ineffective order had been an order made by a court of summary jurisdiction, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order; and

             (b)    the review court had been considering whether:

                   (i)    to vary, revoke, set aside, revive or suspend that order; or

                  (ii)    to extend the time for the doing of anything in relation to the proceedings for the order; or

                 (iii)    to grant a stay of the proceedings for the order.

114MM  Proceedings for contempt

                 If (whether before, at or after the commencement of this Part) a person has:

             (a)    interfered with a right conferred or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction; or

             (b)    failed to satisfy or comply with a liability imposed or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction;

the interference or failure is, and is taken always to have been, a matter that can be dealt with in the same manner as if the interference or failure had been in relation to a right conferred or affected, or a liability imposed or affected, by a valid judgment of that court.

114MN  Evidence

                 The court record, or a copy of the court record, of an ineffective order may be adduced in evidence to show the existence, nature and extent of each right or liability conferred, imposed or affected by section 114MI.

114MO  Part does not apply to certain orders

                 Nothing in this Part applies to an order declared to be invalid by a court before the commencement of this Part.

114MP  Jurisdiction of courts

        (1)    Subject to subsection (3):

             (a)    jurisdiction is conferred on the Family Court and the Federal Magistrates Court; and

             (b)    the Family Court of a State is invested with federal jurisdiction;

with respect to matters arising under this Part.

        (2)    Subject to subsection (3), each court of summary jurisdiction of each State is invested with federal jurisdiction, and jurisdiction is conferred on each court of summary jurisdiction of each Territory, with respect to matters arising under this Part.

        (3)    A court has jurisdiction in respect of a matter arising under this Part in relation to an ineffective order that relates to a matter arising under this Act (the initial matter) only if the court has jurisdiction in respect of the initial matter. The court’s jurisdiction under this Part is subject to the same conditions and limitations as would apply to it in dealing with the initial matter.

I have copious notes which I will give the honourable member to read later. Amendments (1) to (27) address issues that have come to the government’s attention since the Family Law Amendment (Shared Parental Responsibility) Bill 2005 was introduced. They also clarify the operation of certain provisions in the bill. The amendments demonstrate our continuing willingness and commitment to listen and respond to the views of stakeholders and deliver better outcomes for families. The amendments also include the three opposition amendments which I accepted and have already addressed. Whilst I do not think they are necessary, they do not undermine the government’s reforms, unlike many of the other amendments we have already dealt with.

One substantial issue which involved a number of state governments should be referred to by me. I have become aware that some registrars in the Magistrates Court of Victoria have been purporting to make consent orders in matters under the Family Law Act when they have no power to do so. The government amendments will add a new part XIVB to the Family Law Act 1975 to address the issue of ineffective orders made by officers of state courts of summary jurisdiction in the purported exercise of jurisdiction under the Family Law Act. These provisions will commence on royal assent.

The government amendments do not attempt to validate the ineffective orders but rather to create new statutory rights and liabilities for parties that may be exercised and enforced in the same manner as valid judgments of the relevant court. This model has been used in the past to deal with ineffective court orders, and similar legislative provisions have been upheld by the High Court. These matters have been the subject of an approach to me by the Attorney in Victoria. It is a serious issue. They need to be able to operate as they were made and this should ensure that this happens. The other amendments speak for themselves.

Question agreed to.

Bill, as amended, agreed to.

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