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


Part 3: Problems and possible remedies: The legislation



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Part 3: Problems and possible remedies:

The legislation

3.1 PRELIMINARY

Introduction


The Terms of Reference require an assessment of ‘the appropriateness of the legislation’ in relation to matters where issues of family violence arise and to recommend any improvements considered necessary, and to examine whether ‘the legislation and procedures support best practice for handling family violence matters’.

It is apparent that in the drafting of the Act, especially since the 2006 amendments, issues of family violence are closely related to other provisions about children, including provisions dealing with parental involvement. Many submissions raised concerns about the impact of these other provisions in relation to family violence issues. For example, some submissions suggested that the prominence of shared care in a number of provisions of the Act can lead to children being ordered to spend time with perpetrators of violence.76

The Victorian Law Institute, stressing the importance of community education, wrote:

The 2006 law introduced a presumption of equal shared parental responsibility. The emphasis in the media and from politicians on the word “equal” had people assuming this meant that parents would have equal shared time with the children. This of course was not what the legislation said, but it created great confusion in the community about the effect of the new legislation

The National Legal Aid submission said:


The reported cases and the information provided from legal aid practitioners confirms the emphasis in parenting cases on shared parenting rather than protection from harm despite the 2006 Amendments, or perhaps more accurately, because of them.

That submission also pointed to the importance of the legislation as a factor when parties attempt to negotiate in circumstances where there has been violence:

mediation where one party is unable to negotiate freely, as is often the case where there is or has been family violence, is sometimes unfair and potentially dangerous. This situation is compounded by a community assumption, as a result of the 2006 amendments, that parents have rights in relation to equal shared care of their children and the failure of section 63AD to counter this.


It is the experience of Legal Aid lawyers that that assumption is used by fathers in particular as a bargaining tool in negotiations. Where there has been family violence pre and/or post separation, that assumption further creates a power imbalance between the perpetrator of violence and the victim at mediation, and can compromise the safety of women and children.

It is impossible to assess the appropriateness of the legislation by looking only at provisions specifically dealing with family violence; the relevant provisions in Part VII must be seen as a whole. The provisions relating to children’s cases are contained mainly in Part VII of the Act, which is entitled “Children”.77 Part VII was significantly changed by amendments in 1995,78 and changed again by the amendments of 2006.79 In its present form, Part VII is of considerable complexity. For that reason, after this Introduction this Part sets out a summary of the significant provisions and how they are to be read together. It then goes on to address three particular issues and recommends amendments: the ‘friendly parent’ provision: s 60CC(3)(c); obligations on advisers: s 63DA; and costs orders: s 117AB.

The discussion then turns to more complex matters, namely the provisions about shared parental responsibility and the way the court determines the child’s best interests. The recommendations on these matters are expressed more tentatively, because of the complexity of the issues and the limited time available for this review, but I hope the discussion will prove useful.

An overview of the relevant provisions of Part VII of the Family Law Act

The ‘paramount consideration’ principle retained

The law on what we are conveniently calling parenting cases has long been governed by the principle that the child’s best interests must be treated as the paramount consideration. This principle was originally developed by court decisions in the nineteenth and early twentieth centuries, and then incorporated into legislation. It remains in the Act, and its importance was repeatedly emphasised in the background papers to the amending Act of 2006. Section 60CA now provides:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Language

The language used for children’s cases has changed over time. Before 1995, this area of law was generally known as ‘custody law’, and the usual orders were known as ‘custody’, ‘access’, and ‘guardianship’ orders. The language was changed by the 1995 amending Act: the court could make various ‘parenting orders’, namely residence orders, contact orders, and specific issues orders; and the word ‘guardianship’ was replaced by ‘parental responsibility’. The 2006 amendments changed the language again, dropping the names of the parenting orders, and just saying that the court could make parenting orders dealing with various topics, notably with whom the child should live and with whom the child should spend time or communicate. ‘Parental responsibility’ was retained. The current language probably reflects the idea that to describe orders as giving one parent ‘custody’ or even ‘residence’ might be taken to imply that the other parent is not important.


Shared parental responsibility

The 2006 amendments also introduced some rather complex new measures designed to reinforce cooperative parenting. The first was a presumption that children would benefit from equal shared parental responsibility. By s 61DA(1), with certain qualifications, when making a parenting order, the court ‘must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child’.

There is an exception, namely cases where there are reasonable grounds to believe that a parent has engaged in child abuse or family violence.80 In interim proceedings (where the evidence is often incomplete) the presumption applies ‘unless the court considers that it would not be appropriate in the circumstances’.81 The presumption may be rebutted ‘by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child’.82

Next, an order for shared parental responsibility creates obligations to share decision-making: s 65DAC. The obligation is imposed on persons who, under a parenting order, are to share parental responsibility for a child, and relates only to decisions ‘about a major long term issue in relation to the child’.

Interestingly, the legislation does not explicitly say that there is such an obligation to consult where there has been no such order. Although one might think from the emphasis the background papers gave to cooperative parenting, and perhaps from some of the language of s 60B,83 that there would be such an obligation, careful attention to the words of the Act seems to indicate that there is no such obligation. The provision that ‘each parent has’ parental responsibility84 remains unamended, and the express creation of the obligation in cases of court orders might be taken to imply that there is no such obligation where there is no court order.85 While it is clear that parental cooperation is encouraged by the Act, and that failure to cooperate might be taken into account against a parent in relation to parenting orders,86 it seems that there may be no enforceable legal obligation to consult except where there is an order for shared parental responsibility.


Parental decision-making separate from residence since 1996

The change of language in the 1995 Act introduced an important substantive change: the severance of the link between residence and decision-making. The ‘residence’ orders introduced in 1995 were different from the ‘custody’ orders they replaced, in that when they provided that the child should live with one parent (the ‘residence parent’), they gave that parent no particular advantage in decision-making. Unless the court deliberately ordered otherwise, both parents retained the equal decision-making power they had by virtue of having parental responsibility.87 The obvious intention was to encourage continued involvement by both parents in decision-making, even though the child might be living mainly with one parent, and even though one or both partners might have re-married.88 This feature was retained in the 2006 amendments: an order for a child to ‘live with’ a person gives that person no additional decision-making power.


The court’s obligations to consider the child spending equal time, or substantial and significant time, with each parent

Section 65DAA applies in cases where the court has made, or is about to make, an order for equal shared parental responsibility and is considering what other parenting orders to make. It says, essentially, that in making a parenting order the court ‘must consider’ making orders that the child spend equal time, or if not equal then substantial and significant time, with each parent. ‘Substantial and significant time’ is defined to mean, essentially, weekdays and weekends and holidays, times that allow the parent to be involved in the child’s daily routine as well as occasions and events that are of particular significance to the child or the parent.89



The guidelines for determining the child’s best interests: s 60B and s 60CC

The amendments of 2006 continued the pattern of increasingly elaborate legislative guidelines, particularly in relation to the critical task of determining the best interests of the child. The most significant sections are s 60B and s 60CC.

Section 60B sets out the ‘objects’ of Part VII, and the ‘principles underlying it’:90

(1) The objects of this Part are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Section 60CC(1) says that the court ‘must consider the matters’ in subsections (2) and (3). Subsection (2) says that ‘the primary considerations are’:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Subsection (3) says that ‘additional considerations are…’ and then sets out a list of matters. Although the amendments of 2006 added some new ideas and some new emphases, the list still features many of the considerations that were previously in the Act, and which, in turn, largely reflected the matters that courts had long taken into account in determining the best interests of children. The list includes, for example:

(a) any views expressed by the child…

(b) the nature of the relationship of the child with…each of the child’s parents; and … other persons…

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

(d) the likely effect of any changes in the child’s circumstances…

(f) the capacity of [parents and others] to provide for the needs of the child…

The overall direction of these provisions is clear enough. The legislature has retained the principle that the child’s best interests must be regarded as the paramount consideration, and has not restricted the matters to be taken into account in determining what orders are most likely to benefit the child.91 However, in providing guidance to the courts on how to determine those best interests, it has strongly emphasised two aspects: the benefit to the child of a meaningful relationship with both parents, and protection from violence and abuse. These are the two ‘primary’ considerations in s 60CC, and the first two of the objects of Part VII. The court also has to consider all the other matters relating to the best interests of the child - the ‘additional considerations’ in sub-section (3). The legislation does not indicate what significance is to be given to the word ‘primary’, or how the apparent conflict between the two ‘primary’ considerations is to be resolved in situations where providing for a ‘meaningful relationship’ with a parent might expose the child to the risk of violence.


Summary of guidelines and principles for parenting decisions

To summarise, the new provisions:



  • continue the principle that the child’s best interests must be regarded as the paramount consideration;

  • require the courts, in determining the child’s best interests, to consider as ‘primary considerations’ the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from abuse, neglect or family violence, and also to consider a long list of ‘additional considerations’;

  • emphasise that both parents should normally share decision-making following separation, even where one or both re-partner or remarry, and regardless of whether the children live mainly with one parent;

  • encourage parents to cooperate in decision-making relating to the children, and create legal obligations to do so where the court has made an order for shared parental responsibility;

  • where there is an order for equal shared parental responsibility, require the court to consider whether the child should spend equal time, or substantial and significant time, with each parent, except in cases of violence, or child abuse or neglect; and

  • require advisers to have regard to these things.

The Full Court has summarised the gist of the provisions as follows:92

In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.

Parenting orders subject to later parenting plans

Section 64D, which makes parenting orders subject to later parenting plans, is subject to the qualification that a court may ‘in exceptional circumstances, include in a parenting order a provision that the parenting order, or a specified provision of the parenting order, may only be varied by a subsequent order of the court (and not by a parenting plan)’. Such exceptional circumstances 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.

Provisions relating to family violence


Definition of ‘family violence’

A number of provisions deal with ‘family violence’. The term is defined in s 4 as follows:



family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.



General requirements for counselling before parenting order made

By s 65F, except in cases of consent, a court must not make a parenting order in relation to a child unless the parties to the proceedings have attended family counselling to discuss the matter; or

(b) the court is satisfied that there is an urgent need for the parenting order, or there is some other special circumstance (such as family violence), that makes it appropriate to make the order even though the parties to the proceedings have not attended a conference as mentioned in paragraph (a); […]

Informing the court of relevant family violence orders

Section 60CF provides, in substance, that a party who is aware that a family violence order applies to the child or a member of the child’s family must inform the court of the family violence order. Also, a person who is not a party who knows of such an order may inform the court of the family violence order.

It is obviously desirable that a court hearing a children’s case should be aware of any family violence order then in force, if only to ensure that it does not inadvertently make a parenting order that is inconsistent with the family violence order (a matter referred to in s 60CG).


Court to consider risk of family violence

Section 60CG(1) provides:

In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:

(a) is consistent with any family violence order; and

(b) does not expose a person to an unacceptable risk of family violence.

Subsection (2) adds that for the purposes of paragraph (1)(b), the court ‘may include in the order any safeguards that it considers necessary for the safety of those affected by the order’.

It is my impression that this section is not given much prominence. If so, this may have to do with matters of drafting. It deals with two very different matters: in paragraph (a), the obvious desirability of the court not making orders that clash with family violence orders, and in paragraph (b), the mandatory requirement not to expose a person to an unacceptable risk of family violence. In each aspect, it is separated from the other relevant provisions. Paragraph (a) is separate from the provisions that primarily deal with the relationship between family violence orders and parenting orders, which are contained in Division 11. And paragraph (b) is separate from the provisions that set out the principles (s 60B) and the matters to be considered in determining a child’s best interests (s 60CC). These difficulties with s 60CG are examples of matters that would be addressed if there is to be a technical review of Part VII, as proposed in Recommendation 3.8, and this section does not require further discussion in this report.

Court to take prompt action in relation to allegations of child abuse or family violence: s  60K

Section 60K is intended to ensure that in children’s cases the courts ‘take prompt action in relation to allegations of child abuse or family violence’. The measure involved is triggered by the filing of a particular document, known as a Notice of Abuse or Family Violence, or a Form 4. The operation of this section was considered in Part 2.


Court may obtain information from Commonwealth, State and Territory agencies about child abuse or family violence: ss67J – 67P, s 69ZW

Sections 67J – 67P provide for the making of ‘information orders’, which require certain Commonwealth departments to provide relevant information to the courts, such as information about a child’s location. The provisions specifically require the officials to provide ‘any information about actual or threatened violence to the child concerned, to a parent of the child, or to another person with whom the child lives’ that is in the Department’s records.93

Section 69ZW provides, in substance, that the court may make orders requiring certain State and Territory organisations to provide relevant information about child abuse and family violence from its inquiries.

State and territory family violence orders and orders under the Family Law Act (Division 11Family violence’)

The provisions in this Division are intended to resolve inconsistencies between (state and territory) family violence orders and certain orders under the Act, notably those that ‘provide for a child to spend time with a person or require or authorise a person to spend time with a child’, and to ensure that certain court orders do not expose people to family violence; and also ‘to achieve the objects and principles in s 60B’.

These provisions, essentially concerned with the interaction between the Family Law Act and state and territory laws, fall outside the scope of the present Review.




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