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



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4.6 OTHER MATTERS

Parenting plans

National Legal Aid suggested an amendment to the effect that where there is an existing family violence order, a parenting plan should need the approval of the court to be valid. Since parenting plans are not enforceable, the consequence of providing that they are not valid would appear to be that they could not have the effect of overriding inconsistent court orders. This is an interesting idea, but the relevant information available to this Review is too limited to provide a sound basis for a recommendation one way or the other. The argument for such an amendment would need to address, among other things, the question whether this would be an appropriate use of limited court resources.

The abuse of litigation and s 118

Some submissions referred to the use of litigation as a vehicle for harassment of the other party.188 In some cases, no doubt, litigation which appears to one party as a vehicle for harassment will be considered by the other party to be reasonable and necessary, for example to enforce parenting orders where the other party is frequently in breach. However it is certainly possible for litigation to be abused. There appear to be two possible remedies: a costs order and an order under s 118.

Costs orders may however be ineffective where one or both parties are unrepresented, and also where the party against whom the order is made has minimal funds from which to pay them. Section 118 normally requires an application to be made and a case made out for the making of what is popularly called a ‘vexatious litigant’ order. In some circumstances, however, the party might be unable to make out such an application, especially when unrepresented. There might be an argument for amending s 118 to enable the court itself to initiate such proceedings.189 The material before the Review is not sufficient to justify a recommendation to that effect, but it is, I believe, a matter that deserves consideration, especially in the environment of legislation that encourages judicial officers to be more interventionist.



Recommendation 4.7

That consideration be given to amending s 118 to enable the court to entertain such an application of its own motion.


The Family Court’s Publication “Best practice principles for use in parenting disputes when family violence or abuse is alleged”


In my view the publication of this document has been a valuable initiative. It draws on current understanding of family violence and contains a great deal of useful suggestions. Some of the contents of this publication have been referred to elsewhere in this Report. Such comments as were made about the Principles were favourable: some judicial officers clearly find it useful.190

On the other hand, it seemed that not all judicial officers are familiar with this document, and it does not seem to be as influential as it was obviously intended to be. Perhaps because of this, one submission suggested that the Principles be ‘fully implemented’.191 If this is the position, it might be useful for the Court to make some inquiries about this, and see if there are ways of encouraging judicial officers to make more use of it the Principles, perhaps by including it in training or education programs available to judicial officers, and to lawyers.

Information provided during the Review indicated that at least some Federal Magistrates used the Principles. However although the principles are obviously suitable for use in all parenting proceedings, it is not made explicit in the Principles that they are intended to apply to the Federal Magistrates Court. Such problems will presumably disappear once a decision is implemented about the future of the two courts, but as an interim measure it would be desirable for the Principles to indicate explicitly that they are intended for use in the Federal Magistrates Court as well as the Family Court of Australia (assuming that is the intention).

There is much potential benefit in such a document as the Principles, although of course its actual value will depend on the extent to which it is known and used. I understand that the document was originally intended as an in-house guide for judicial officers, and only later became publicly available. Now that it is in the public arena, and having regard to its value, in my view it would be useful to examine whether the writing and presentation could be improved, and Appendix 5 contains some suggestions that the courts may wish to consider.


Recommendation 4.8

That the family law courts review the extent to which judicial officers in the Family Court of Australia and the Federal Magistrates Court use and benefit from the Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged, and consider any measures that might lead to the Principles becoming more influential.


Appendix 1:
Submissions and consultations

SUBMISSIONS


List of submissions from organisations and individuals made to the

Family Courts Violence Review.

  1. Aboriginal Family Violence Prevention & Legal Service Victoria

  2. ACT Law Society

  3. Dr Tom Altobelli

  4. Australian Institute of Criminology

  5. Australian Men’s Congress

  6. Background information paper from the Hon Diana Bryant, Chief Justice of the Family Court of Australia

  7. Dr Juliet Behrens and Dr Bruce Smyth (In-Confidence)

  8. Community Partnerships Against Domestic & Family Violence

  9. Council of Single Mothers and their Children (Victoria)

  10. Domestic Violence Resource Centre Victoria

  11. Dr Patricia Easteal

  12. Family Law Section, Law Council of Australia

  13. Family Relationship Centre-Bundaberg

  14. Family Relationship Services Australia

  15. Federal Magistrates Court

  16. Federal Magistrate Norah Hartnett

  17. Journey Family Lawyers

  18. Kingsford Legal Centre

  19. Dr Lesley Laing (In-Confidence)

  20. Law Institute of Victoria

  21. The Law Society of New South Wales

  22. Mr Paul Lodge


  23. Lone Fathers Association (Australia)

  24. Mark and Sands Lawyers

  25. Mayumarri Healing Centre

  26. Men’s Rights Agency

  27. National Abuse Free Contact Campaign

  28. National Council for Children Post-Separation

  29. National Council of Single Mothers and their Children Inc.

  30. National Legal Aid

  31. National Peak Body for Safety and Protection of Parents and Children

  32. Non-Custodial Parents Party (Equal Parenting)

  33. No To Violence, Male Family Violence Prevention Association Inc.

  34. NSW Women’s Refuge Movement Working Party Inc.

  35. Nuance Exchange Network

  36. Protective Mothers Alliance

  37. Private Individual 1

  38. Private Individual 2

  39. Private Individual 3

  40. Private Individual 4

  41. Private Individual 5

  42. Private Individual 6

  43. Private Individual 7

  44. Private Individual 8

  45. Private Individual 9

  46. Private Individual 10

  47. Private Individual 11

  48. Private Individual 12

  49. Private Individual 13

  50. Private Individual 14

  51. Private Individual 15

  52. Private Individual 16
  53. Private Individual 17


  54. Private Individual 18

  55. Private Individual 19

  56. Private Individual 20

  57. Private Individual 21

  58. Private Individual 22

  59. Private Individual 23

  60. Private Individual 24

  61. Private Individual 25

  62. Private Individual 26

  63. Private Individual 27

  64. Private Individual 28

  65. Private Individual 29

  66. Private Individual 30

  67. Private Individual 31

  68. Private Individual 32

  69. Private Individual 33

  70. Private Individual 34

  71. Private Individual 35

  72. Private Individual 36

  73. Private Individual 37

  74. Private Individual 38

  75. Private Individual 39

  76. Private Individual 40

  77. Private Individual 41

  78. Private Individual 42

  79. Private Individual 43

  80. Private Individual 44
  81. Private Individual 45


  82. Private Individual 46

  83. Private Individual 47

  84. Private Individual 48

  85. Private Individual 49

  86. Private Individual 50

  87. Private Individual 51

  88. Private Individual 52

  89. Private Individual 53

  90. Private Individual 54

  91. Private Individual 55

  92. Ms Zoe Rathus

  93. Relationships Australia (Victoria)

  94. Associate Professor Helen Rhoades

  95. Safer Family Law Campaign

  96. Sole Parents’ Union

  97. State Coroner Victoria

  98. St George Domestic Violence Counselling Service

  99. Victims of Crime Assistance League Inc. NSW

100. Women’s Family Law Support Service

101. Women’s Legal Services Australia

102. Women’s Legal Service Brisbane

103. Women’s Legal Service Victoria (In-Confidence)



List of meetings which Professor Chisholm conducted for the

Family Courts Violence Review

Australian Institute of Family Studies

Meeting 1: Canberra

  • Attendees: Professor Alan Hayes (Director), and Dr Matthew Gray (Deputy Director, Research)

  • Date: 18 August 2009

Meeting 2: Melbourne


  • Attendees: Dr Matthew Gray (Deputy Director, Research), Dr Rae Kaspiew (Senior Research Fellow), Dr Lawrie Moloney, and Dr Ruth Weston (General Manager - Research and Principal Research Fellow)

  • Date: 7 September 2009


Australian Law Reform Commission, Sydney

  • Attendees included: Emeritus Professor David Weisbrot AM (President), and Professor Ros Croucher

  • Date: 17 August 2009

Canberra Fathers and Children Service (CANFaCS), Canberra

  • Attendee: Mr Anthony Rochester (Executive Officer)

  • Date: 12 October 2009


Domestic Violence Resource Centre Victoria (DVRCV), Melbourne

  • Attendees: Ms Virginia Geddes (DVRCV Coordinator), Ms Vida Luimaite (DVRCV Trainer), and Ms Libby Eltringham (DVRCV Community Legal Education Worker)

  • Date: 8 September 2009


Family Court of Australia – Child Dispute Services

Meeting 1: Sydney

  • Attendees: Mr Paul Lodge (Deputy Manager Child Dispute Services), and Ms Debra Fry (Regional Co-ordinator Child Dispute Services)

  • Date: 31 August 2009


Meeting 2: Canberra

  • Attendee: Ms Diane Gibson (Director, Child Dispute Services)

  • Date: 13 October 2009


Family Court of Australia – Melbourne Registry
  • Attendees included judicial officers of the Family Court of Australia, and other court staff


  • Date: 8 September 2009


Family Court of Australia – Sydney Registry

  • Attendees included judicial officers of the Family Court of Australia, and Federal Magistrate Kemp of the Federal Magistrates Court

  • Date: 1 September 2009


Family Court of Western Australia

Meeting 1: Canberra

  • Attendees: Magistrate David Monaghan, and Ms Kay Benham (Director, Court Counselling and Support Services)

  • Date: 15 September 2009


Meeting 2: Perth

  • Attendees included judicial officers of the Family Court of Western Australia, and other court staff

  • Date: 22 September 2009


Family Law Section, Law Council of Australia, Canberra

  • Attendees: Mr Geoff Sinclair (Chair), and Ms Maureen Schull (Director).

  • Date: 16 September 2009


Family Law System Reference Group, Canberra

  • Date: 15 September 2009


Family Relationship Centre - Perth City

  • Attendees: Ms Mandy Flahavin (Senior Manager – Family Dispute Resolution Services), Ms Vivienne Wolff (Senior Family Dispute Resolution Provider), and Ms Noelene Iannello (Manager Family Violence Programs)

  • Date: 23 September 2009


Family Relationship Centre- Sydney City
  • Attendees: Ms Janet Carmichael (Manager), Ms Jenny Huxley (Community Liaison Officer), Ms Robyn Heath (Senior Family Adviser), and Ms Silvie Calder-Hickey (Senior Family Dispute Resolution Practitioner)


  • Date: 1 September 2009

Family Transitions, Melbourne


Federal Magistrates Court – Brisbane Registry

  • Attendees included: Federal Magistrate Susan Purdon-Sully, Federal Magistrate Leanne Spelleken, Federal Magistrate Stephen Coates, Federal Magistrate Keith Slack, and Ms Marie Adams (Senior Family Consultant)

  • Date: 1 October 2009


Federal Magistrates Court - Melbourne Registry

  • Attendees included: Federal Magistrate Michael Connolly (via telephone link), Federal Magistrate Norah Hartnett, Federal Magistrate Geoffrey Monahan, Federal Magistrate Daniel O'Dwyer, Federal Magistrate Maurice Phipps, Federal Magistrate Heather Riley, Federal Magistrate Grant Riethmuller, Federal Magistrate John Walters, and Ms Adele Byrne (Registrar)

  • Date: 7 September 2009


Lawyers from the Australian Capital Territory

Meeting 1: Canberra

  • Attendees: Ms Dianne Simpson (Director - Dobinson Davey Clifford Simpson Family Law Specialists), and Ms Julie Dobinson, (Director- Dobinson Davey Clifford Simpson Family Law Specialists)

  • Date: 19 August 2009


Meeting 2: Canberra
  • Attendees: Ms Michelle Bryant-Smith (Manager Family Dispute Resolution Legal Aid ACT), Ms Mary Burges (Manager/Principal solicitor Family Law Legal Aid ACT), Ms Brigitte Smithies, Mr Matthew Kamarul, and Mr Gregg Stagg (Family Law Solicitor Legal Aid ACT),  Mr Geoff Mazengarb (Family Law Solicitor Private Practice “Mazengarb Baralet”), Ms Andrea Evans, Mr Stuart, Ms Lessli Strong, Mr Matthew Strong, and Mr Kevin Robinson (Family Law Solicitor Private Practice “Evans Yeend Family Lawyers”),   Mr Ken Hubert and Mr David Nimmo (Family Law Solicitor Private Practice “Capon & Hubert”)


  • Date: 13 October 2009

Legal Aid Victoria, Melbourne

  • Attendees: Ms Judy Small (Managing Lawyer, Family Law Service), and Ms Judith Sharples (Director, Family Youth & Children's Law Services)

  • Date: 7 September 2009


Legal Aid Western Australia, Perth

  • Attendees: Mr George Turnbull (Director of Legal Aid WA), Ms Bernadette Kasten (Director, Family Law Division), Ms Maureen Kavanagh (Director, Criminal Law Division), Ms Colleen Brown (Director, Client Services Division), Ms Julie Jackson (Solicitor in Charge, Family Court Services and Children's Court (Protection) Services), Mr Lee Mather (Solicitor), Mr Michael Hovane (Manager, Domestic Violence Legal Unit), and Ms Emma Walke (Solicitor)

  • Date: 22 September 2009


Lone Fathers Association Australia, Canberra

  • Attendees: Mr Barry Williams (President), and Mr Jim Carter (Policy Adviser)

  • Date: 14 October 2009


Marks and Sands Lawyers, Perth

  • Attendee: Ms Sonali De Alwis

  • Date: 22 September 2009


National Legal Aid, Family Law Working Group, Brisbane

  • Date: 30 September 2009


Sydney Law School, University of Sydney, Sydney

  • Attendees: Professor Julie Stubbs, Professor Patrick Parkinson AM, Professor Hilary Astor, Dr Lesley Laing, and Associate Professor Judith Cashmore

  • Date: 31 August 2009

Women’s Legal Services Australia, Sydney


  • Attendees: Ms Edwina MacDonald (Law Reform Coordinator, Women's Legal Services Australia and Law Reform and Policy Solicitor, Women's Legal Services NSW), Ms Dianne Hamey (Co-convenor, Women's Legal Services Australia and Supervising Solicitor, Women's Legal Services NSW), Ms Natascha Rohr (A/ Supervising Solicitor, Women's Legal Services NSW), and Ms Carolyn Jones (Solicitor, Women's Legal Services NSW)

  • Date: 31 August 2009


Women’s Legal Services Brisbane, Brisbane

  • Attendees: Ms Angela Lynch (Community Legal Education Solicitor), Ms Katrina Finn (Coordinator), and Ms Rachael Field (Service President)

  • Date: 2 October 2009


Individuals-

Federal Magistrate Baumann, Brisbane

  • Date: 2 October 2009


Magistrate Cathy Lamble, Melbourne

  • Date: 8 September 2009


Chief Justice Diana Bryant, Chief Federal Magistrate John Pascoe, Mr Ian Govey (Deputy Secretary, Civil Justice and Legal Services Group), Ms Alison Playford (Acting First Assistant Secretary, Access to Justice Division), Ms Toni Pirani (Assistant Secretary, Family Law Branch, Access to Justice Division) and Ms Erin Smith (Senior Legal Officer, Access to Justice Division), Canberra

  • Date: 22 October 2009


Teleconferences

  • 21 September 2009, phone call with Chief Judge Peter Boshier (New Zealand)
  • 29 September 2009, phone call with Mr David Hugall and Ms Deborah Fry, Regional Co ordinators Child Dispute Services, Family Court of Australia, Mr Simon Kelso, Executive Advisor Client Services, Family Court of Australia, Ms Marianne Christmann, Regional Registry Manager, Family Law Courts NSW/ACT, Ms Wendy Bartlett, Registry and Judicial Services Manager, Sydney Registry, Family Court of Australia.



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