Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

I present the government’s response to the report of the Legal and Constitutional Legislation Committee on its inquiry into the provisions of the Family Law Amendment (Shared Parental Responsibility) Bill 2006, and seek leave to incorporate the document in Hansard.

Leave granted.

The response read as follows—

Government response to recommendations of the Senate Legal and Constitutional Legislation Committee Report on the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (the bill)

Recommendation 1—The Committee recommends that there be a definition of ‘equal shared parental responsibility’ in the bill

Response

The Government does not accept this recommendation. The Government notes that parental responsibility is already defined in section 61B of the Family Law Act 1975 to mean, in relation to a child, all of the duties, powers, responsibilities and authorities, which by law, parents have in relation to children. 

This definition relies on the common law and statute law which are not static. In addition, the amount and type of parental responsibility depends on the age and needs of the child. Parental responsibility changes as the child develops their own capacity and views. Given the complexities, the Government feels that it is inappropriate to further define parental responsibility. The precise content will be dependent on the fact situation. To attempt to define the term would run the risk of missing some aspect and of setting in stone a concept that is dynamic and changes as the age and circumstances of the child changes.

New section 65DAC makes clear that where a parenting order provides for the sharing of parental responsibilities this means decisions about major long term issues in relation to a child must be made jointly by those persons. The provision requires each person to consult and make a genuine effort to come to a joint decision about that issue. There is also a definition of major long term issues included in the bill.

The term ‘equal’ reflects the Government’s view that the presumption should be that neither parent has a lesser or ‘token’ responsibility in respect of the child. The individual circumstances of particular cases will likely lead to different mechanisms by which parental responsibility will be shared. Accordingly, the Government considers that the legislative intent conveyed by the use of the term ‘equal’ should not be further codified.

The presumption of equal shared parental responsibility is a significant change from the current law which will mean that as a starting point courts will have to adopt a rebuttable presumption that parents will have an equal role in making major long term decisions about a child. The effect of the new provisions will be monitored on an ongoing basis.

Recommendation 2—The relationship between the considerations in proposed subsections 60CC(2) and (3) be clarified in the bill.

Response

The Government does not accept this recommendation. The Government notes that the Explanatory Memorandum accompanying the bill already explains the relationship between the two tiers of factors that must be considered in determining the best interests of the child.

The House of Representatives Standing Committee on Legal and Constitutional Affairs in its report on the exposure draft of the bill noted that the ‘primary factors do draw appropriate attention to the objects provisions in a positive way and will assist to focus the attention of the court to those objects particularly in relocation cases’.

The primary considerations of the right of children to know their parents and to be protected from harm mirrors the two new objects of Part VII of the Family Law Act 1975. These factors have been elevated as they deal with important rights of children and will encourage a child focussed approach to assessment of best interests. Both considerations are of equal weight. The safety of a child is not intended to be subordinate to the child’s meaningful relationship with both parents. Both factors are important and will be considered in light of the circumstances of the individual case. Where there is family violence then this factor will have particular relevance. In cases not involving issues of safety this factor will be less relevant and the benefit of a meaningful relationship will be more relevant.

There may be some instances where the court gives greater weight to the additional factors over the primary factors. While this is clear from the Explanatory Memorandum, the Government is concerned that any further steps to codify this point might undermine the legislative intent that, in general, the primary factors will be the most important.

Recommendation 3—Subsections 60CC(4) and (4A) should be amended to make it clear that a court should consider a parent’s pre and post separation conduct and circumstances. The revised provisions should use appropriate terminology for the pre-separation conduct and considerations, and avoid using post separation terminology such as ‘the parent’s obligation to maintain a child’. The revised provisions should also direct the court that while pre-separation considerations are important, the focus should be on determining the child’s best interests in relation to a parent’s present and future conduct and circumstances.

Response

The Government does not accept this recommendation. The Government amendment introduced in the House of Representatives makes it clear that the Government’s intention is that the focus of this provision is on post-separation rather than pre-separation parenting. However, the provision has been drafted not to preclude situations where ‘separation’ is an irrelevant concept (such as where the parents have never lived together). The drafting in terms of post-separation terminology is a deliberate means to ensure that the primary focus is on post-separation parenting.

Recommendation 4—That the Government undertake a review of the application of provisions which may operate to exclude the Court’s consideration in situations where consent orders are lodged by the parties.

Response

This recommendation is accepted. The Government agrees to review this issue as the reforms are implemented. The Government believes that with the significantly expanded support services that will be available to parents in the future, parents will be able to be much better informed on issues to consider when entering into consent orders.

Recommendation 5—The proposed definition of family violence should be redrafted to clarify that the test is the ‘reasonable person in the shoes of the individual and whether they would fear or have an apprehension of violence’.

Response

This recommendation is accepted. It is proposed that a note be inserted in the legislation to make clear that when determining what is a reasonable apprehension or fear of violence that the court takes account of the individual circumstances of the person who is said to have the reasonable apprehension or fear.

While the amendment does not alter the legal effect of the provision, the Government believes it may assist some self-represented litigants to understand the provision, particularly in light of the unfortunate attempts by some persons to misrepresent the effect of the change to the definition of family violence.

Recommendation 6—The Government should use the results of the Australian Institute of Family Studies research it has commissioned into family violence and, if necessary, review definitions of family violence in family law proceedings.

Response

This recommendation is accepted. The research commissioned by the Australian Institute of Family Studies into family violence is primarily focussed on examination of developing strategies to improve court processes rather than focussing on legislative definitions. However, as part of the Family Law Violence Strategy the Attorney-General has undertaken to meet with States and Territories to seek their support to work collaboratively to ensure better coordination between the Commonwealth family law system and State and Territory systems. As part of this process the impact of different definitions in different jurisdictions will be examined.

Recommendation 7—Proposed section 117AB should be removed from the bill pending any relevant results from the Australian Institute of Family Studies research into the prevalence of false allegations of family violence in family law proceedings.

Response

The Government does not accept this recommendation. The Government believes that, regardless of the frequency of false allegations and statements in family law proceedings, any occurrences should be penalised. The test is restricted to situations where the false statement has been ‘knowingly made’. In such circumstances it is appropriate that costs be incurred and courts already routinely make such orders in these circumstances.

The research being conducted by the Australian Institute of Family Studies into family violence is primarily focussed on developing strategies to improve court processes. It is true that the research will also attempt to quantify the frequency of false allegations. However, irrespective of the prevalence of false allegations or statements, the Government believes that in those cases which are shown to exist, this is an appropriate measure.

Recommendation 8—That the Government undertake the necessary consultation with service providers in rural, regional, remote and very remote areas to ensure that adequate funds are allocated for the provision of dispute resolution services in those areas. Further, where video-link or telecommunications are to be used to provide dispute resolution services, the Government is to ensure that adequate funds are provided so that parties are given the opportunity to have an initial face-to-face outreach service.

Response

This recommendation is accepted in relation to consultation with service providers. The Government has already undertaken consultation with service providers in rural, regional and remote areas in developing the final package of reforms and the service delivery models for Family Relationship Centres. This included teleconferences and face-to-face consultations with a wide range of service providers in rural and remote locations to discuss the particular difficulties and funding needs in providing family relationship services in these regions. Those consultations were the basis upon which resource levels for these services were estimated.

Additional consultations will be held in Alice Springs and Mt Isa in May 2006 to further identify service delivery issues in remote locations covered by the first 15 Centres.

In relation to funding for services, the package of reforms to the family law system announced by the Government recognised the needs of Australians in rural, regional and remote areas. All Family Relationship Centres with rural and regional communities in their catchment areas are required to provide outreach services to those areas. Around half of the 65 Centres fall within this category. Funding allocated to these Centres takes into account the need for face-to-face service delivery to regional areas. Centres may also use alternative means of communication, such as telephone, video or Internet to complement face-to-face services.

The Government is also introducing a range of other measures to assist rural, regional and remote communities including:

• six new dispute resolution services to be established in 2006-07 to address gaps identified in high need regional areas in Australia
• additional funding to enable Centres to engage advisers to work with Indigenous communities to help them access the Centres and other services, and
• the Family Relationship Advice Line which will provide a free national 1800 number for people who cannot access a Family Relationship Centre or who prefer to use the telephone. The Advice Line services will comprise the assessment of a caller’s needs, provision of information and referral to appropriate services, advice on parenting arrangements after separation and simple legal advice on family law issues.

Recommendation 9—Where parties are in a location which prevents them from attending an FRC, the first three hours of dispute resolution is provided to those parties free of charge, regardless of who provides the dispute resolution service.

Response

The Government notes the Committee’s recommendation. The Government’s family law reform package provided additional funding for additional dispute resolution services in addition to the establishment of the 65 Family Relationship Centres (of which around half will be located in regional locations).

The Government will spend $13.4 million expanding dispute resolution services (such as mediation). Six new services will be established in 2006-07 in regional locations bringing the total number of dispute resolution services funded under the Government’s Family Relationship Services Program (FRSP) to 135 services. Almost half of these services are in rural or remote areas.

These services are required to provide access for people on low incomes. Any fees must take into account the ability of the client to pay which means that in many cases services are provided free of charge.

The Government will monitor the incidence of parties in remote locations needing to pay fees from providers other than Family Relationship Centres in the context of compulsory dispute resolution.

Recommendation 10—That the Department immediately undertake a comprehensive analysis of the cost implications on current litigants, future litigants and the courts on maintaining two regimes for a period of three years for the determination of Part VII applications.

Response

This recommendation is accepted. The bill will be amended to remove the need for there to be two regimes.

Government amendments 2 - 4 address concerns that the bill would not apply to court applications made prior to the commencement of the bill. These Government amendments provide that the key provisions in Schedule 1, which change the way courts approach parenting orders, will apply to all parenting orders made on or after commencement, regardless of whether the proceedings were initiated before commencement or not. They aim to reduce the length of time that there will two sets of laws applying to family law proceedings.

The Government considers that these amendments strike the appropriate balance between ensuring uniformity and not unduly disadvantaging existing litigants. The period between passage of the bill through the Senate at the end of March and commencement by proclamation expected to be 1 July 2006, will mean that existing litigants will have appropriate notice of the proposed changes to the legislation prior to commencement.

Recommendation 11—That the Attorney-General’s Department develop and implement a comprehensive public information campaign to inform people of the impact of the amendments in the bill on existing parenting orders.

Response

This recommendation is accepted. The family law reform package announced as part of the 2005-06 Budget includes joint funding of $5.7 million over two years to develop and implement a community education campaign to raise awareness of changes to the law and the reforms to the family law system.

This education campaign will include information on the impact of the legislative changes on existing parenting orders.

Recommendation 12—In the event of an increase of applications to the court to vary existing parenting orders once the amendments in the bill commence, that the Government provide the court with sufficient resources to adequately address the increase in applications.

Response

This recommendation is accepted. The Government will monitor the impact on court resources and make decisions about resourcing in the context of the overall Commonwealth budget and through the ongoing evaluation of the reforms. In addition the Government has injected nearly $400 million into additional services to provide an alternative to the court system to resolve post separation disputes.

Government amendment 5 clarifies the Government’s intention that Schedule 1 of the bill is not to operate so as to allow previously resolved parenting orders to be reconsidered purely on the basis of the changes to the legislation. This Schedule contains the provisions that change the way courts are to approach the making of parenting orders.

The Government amendment addresses concerns raised by the Family Court of Australia. The Court was concerned about the potential impact on judicial resources, and on hearing times, of increased litigation following commencement of the legislation, caused by people seeking to have previously resolved matters reconsidered purely on the basis of the changes to the law.

As indicated in relation to Recommendation 11, the community education campaign will include information on the impact of the legislative changes on existing parenting orders.

Recommendation 13—That the Attorney-General’s Department consult with the relevant State and Territory departments and agencies in relation to the operation of section 69ZW.

Response

This recommendation is accepted. This issue can be addressed in the implementation of the Family Law Violence Strategy. The Attorney-General has written to relevant State and Territory Ministers seeking to meet with them to discuss issues related to family violence and abuse.

Recommendation 14—That the Attorney-General’s Department consult with National Legal Aid to ensure that the necessary resources are made available to meet any increased demand for children’s lawyers.

Response

This recommendation is accepted in principle. The Department has recently written to National Legal Aid undertaking to monitor the impact on resources of any increased demand for independent children’s lawyers.

Recommendation 15—The section 68R be reviewed to ensure the considerations to be taken into account are clear to all readers, and similarly the weighting to be given to each consideration, by the Court when exercising its powers under the section must also be clear.

Response

This recommendation is accepted. At the Standing Committee of Attorney-General (SCAG) meeting on 11-12 April 2006, the Attorney-General raised issues relating to the changes in the bill to Division 11 of the Family Law Act 1975 and the Family Law Violence Strategy. The operation of section 68R was discussed. The issue can also be addressed in the implementation of the Family Law Violence Strategy. The Attorney-General has written to relevant State and Territory Ministers seeking to meet with them to discuss issues related to family violence and abuse. Victoria, Tasmania and Queensland have raised the issue directly in correspondence to the Attorney-General and the Attorney-General is responding to these States directly. Western Australia has had discussions at officer level about this provision.

Recommendation 16—The Committee recommends that subject to the preceding recommendations the bill proceed.

Response

This recommendation is accepted. It is important that the bill proceeds to ensure that the legislative provisions are in place by July 2006. These changes underpin the rest of the family law reforms and it is important that they are in place when the first 15 Family Relationship Centres open in July 2006. 

If the proposed amendments to the application provisions proceed, it is critical that parties who currently have applications in the system have appropriate notice that the new laws will apply to them.