27 November 2009 Executive Summary 4 Recommendations 11 Part 1: preliminary 18 1 terms of reference 18



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3.3 OBLIGATIONS ON ADVISERS: s 63DA

Introduction

Section 63DA provides that advisors must tell people various things. Issues arise about this provision, mainly because it omits all reference to the importance of ensuring the safety of children and other family members.

The provisions of s 63DA

Section 63DA provides in substance that advisers must inform people of various things when they are giving ‘advice or assistance to people in relation to parental responsibility for a child following the breakdown of the relationship between those people’. ‘Adviser’ is defined as a legal practitioner; a family counsellor; a family dispute resolution practitioner; or a family consultant.

The adviser must inform them that they could consider entering into a parenting plan in relation to the child; and inform them about where they can get further assistance to develop a parenting plan and the content of the plan.94

Under subsection (2), if an adviser gives people advice about a parenting plan, the adviser must inform them that, if the child spending equal time with each of them is reasonably practicable and in the best interests of the child, they ‘could consider the option of an arrangement of that kind’ (paragraph (a)). The adviser must also inform them that, if the child spending equal time with each of them is not reasonably practicable or is not in the best interests of the child but the child spending substantial and significant time with each of them is reasonably practicable and in the best interests of the child, they ‘could consider the option of an arrangement of that kind’ (paragraph (b)).

A note to the section says that paragraphs (a) and (b) ‘only require the adviser to inform the people that they could consider the option of the child spending equal time, or substantial and significant time, with each of them. The adviser may, but is not obliged to, advise them as to whether that option would be appropriate in their particular circumstances’. Further, subsection (3) gives a detailed explanation of what is meant by ‘substantial and significant time’ in paragraph (b):

(3) For the purposes of paragraph (2)(b), a child will be taken to spend substantial and significant time with a parent only if:

(a) the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii) days that do not fall on weekends or holidays; and

(b) the time the child spends with the parent allows the parent to be involved in:

(i) the child’s daily routine; and

(ii) occasions and events that are of particular significance to the child; and

(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

Yet further explanation is given of the obligations under paragraphs (a) and (b). Subsection (4) says that ‘Subsection (3) does not limit the other matters to which regard may be had in determining whether the time a child spends with a parent would be substantial and significant.’

The adviser’s obligations do not end with paragraphs (a) and (b) of sub-section (2). The adviser must also ‘inform them that decisions made in developing parenting plans should be made in the best interests of the child’; and must ‘inform them of the matters that may be dealt with in a parenting plan in accordance with subsection 63C(2)’. The adviser must also ‘inform them that, if there is a parenting order in force in relation to the child, the order may (because of section 64D) include a provision that the order is subject to a parenting plan they enter into’.

The adviser must also inform them about the desirability of including in the plan:

(i) if they are to share parental responsibility for the child under the plan—provisions of the kind referred to in paragraph 63C(2)(d) (which deals with the form of consultations between the parties to the plan) as a way of avoiding future conflicts over, or misunderstandings about, the matters covered by that paragraph; and

(ii) provisions of the kind referred to in paragraph 63C(2)(g) (which deals with the process for resolving disputes between the parties to the plan); and

(iii) provisions of the kind referred to in paragraph 63C(2)(h) (which deals with the process for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan).

The adviser must also ‘explain to them, in language they are likely to readily understand, the availability of programs to help people who experience difficulties in complying with a parenting plan’. The adviser must also ‘inform them that s 65DAB requires the court to have regard to the terms of the most recent parenting plan in relation to the child when making a parenting order in relation to the child if it is in the best interests of the child to do so’.

Discussion


The Explanatory Memorandum explains the section as follows:

It sets out the obligations of advisors (ie. legal practitioners, family counsellors, family dispute resolution practitioners and family consultants) when giving advice to people in relation to parenting plans. It aims to assist people making parenting plans to understand what the plan may include, the effect of the plan and the availability of programs to assist people who experience difficulties with their agreements or who need to negotiate a change in an agreement. This is a key provision and ensures that people are well informed and supported towards making an agreement about post-separation parenting. It is intended that as part of the package of reforms to the family law system that brochures and information materials will be developed. These will present the information required to be provided in a simple and easily understood form. This will assist advisers in fulfilling their obligations under this provision.

The Explanatory Memorandum also says:



159. It is envisaged that the information relating to parenting plans that advisers are required to provide under this section could be provided in written form such as brochures.

Conclusions and recommendations

In my view the drafting of the provision is less than satisfactory. It is unnecessarily lengthy, since much of it repeats what is in other provisions of the Act rather than telling advisers to refers to those sections.95 Despite its length, it is curiously silent on whether advisers should give any advice about consent orders. If the intention was to instruct advisers in what to say, one might have expected the section to point out that agreements could be embodied in consent orders or parenting plans, or both. It seems however that the single focus of the section is, as the Family Law Section noted when it first appeared, on emphasising ‘shared parenting’.96

This focus may be responsible for the most unsatisfactory aspect of the section. Despite its length and detail, it omits any reference to what is one of the two ‘primary considerations’ (and one of the ‘objects’ of the legislation under s 60B), namely ‘the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence’.

As the National Legal Aid submission observed:


Clients who disclose family violence are mandatorily referred to the provisions of the legislation that highlight encouraging a meaningful relationship between a child and a parent. For example, S 63DA does not mention family violence but sets out the mandatory areas of advice to be given to a client by an advisor. With this dialogue occurring, it is more than possible and in NLA’s experience most likely, that the need for a child to have a meaningful relationship with a parent becomes (in the minds of advisors and the parties) more important a consideration than the need to protect a child from harm.

In my view the present wording of s 63DA is inconsistent with one of the two major themes of the legislation. It effectively invites the professional to ignore issues of family violence and safety, and focus only on the benefits of parental involvement. By doing so it seems likely to have exposed people to increased risks of violence, by contributing to the impression that the family law system is more interested in encouraging parents to be involved than in respecting the safety of children and adults.



Recommendation 3.1

That if recommendations 3.3 and 3.4 are adopted, section 63DA be replaced by a simpler provision, in substance directing advisers to have regard to the principles stated in the Act about the best interests of children; and if recommendations 3.3 and 3.4 are not adopted, s 63DA be amended to emphasise the need to ensure the safety of children and family members.




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