Recommendation 4 Council recommends that the following provision be inserted in the Family Law Act.
A) Where there is a dispute concerning a change of where a child lives in such a way as to
substantially affect the child’s ability to live with or spend time with a parent or other
person who is significant to the child’s care, welfare and development, the court must:
(1) Consider the different proposals and details of where and with whom a child
should live, including:
(a) What alternatives there are to the proposed relocation;
(b) Whether it is reasonable and practicable for the person opposing the
application to move to be closer to the child if the relocation were to be
(c) Whether the person who is opposing the relocation is willing and able to
assume primary caring responsibility for the child if the person proposing
to relocate chooses to do so without taking the child.
(2) Consider which parenting orders are in the child’s best interests having regard to
the objects contained in section 60B and all relevant factors listed in
section 60CC, and:
(a) Whether given the age and developmental level of the child, the child’s
relocation would interfere with the child’s ability to form strong
attachments with both parents;
(b) If a party were to relocate:
(i) What arrangements, consistent with the need to protect the child from
physical or psychological harm, can be made to ensure that the child
maintains as meaningful a relationship with both parents and people
who are significant to the child’s care, welfare and development as is
possible in the circumstances;
(ii) How the increased costs involved for the child to spend time with or
communicate with a parent or people who are significant to the child’s
care, welfare and development should be allocated;
(c) The effect on the child of the emotional and mental state of either party if
their proposals are not accepted.
(B) The court may also consider the reasons the parent wishes to move away and
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Cooper, Donna, ‘Relocation: parents’ right to ‘intra-metropolitan movement’’ (2003) 24(3) Queensland Lawyer 132
Coyle, Wendy, ‘Family dynamics lie at heart of relocation success’ (1996) November HRMonthly 10
Craig, David, ‘The social problems of imposed residential relocation’ (1989) 78 Defence Force Journal 31
Debele, Gary A, ‘A children’s rights approach to relocation: a meaningful best interests standard’ (1998) 15 Journal of the American Academy of Matrimonial Lawyers 75
Dickey, Anthony, ‘Mandatory parenting orders’ (1998) 72 Australian Law Journal 20
Easteal, Patricia; Behrens, Juliet & Young, Lisa, ‘Relocation decisions in Canberra and Perth: a blurry snapshot’ (2000) 14 Australian Journal of Family Law 234
Eekelaar, John, ‘Beyond the welfare principle’ (2002) 14(3) Children and Family Law Quarterly 237
Fabricius, William V, ‘Listening to children of divorce: new findings that diverge from Wallerstein, Lewis and Blakeslee’ (2003) 52(4) Family Relations 385
‘From overseas: relocation cases: the UK approach’ (1999) 5(2) Current Family Law 64
Gindes, Marion, ‘The psychological effects of relocation for children of divorce’ (1998) 15 Journal of the American Academy of Matrimonial Lawyers 119
Goldwater, Anne-Frances ‘Long Distance Custody Cases: Are the Child’s Best Interests Kept at a Distance?’ (1998) 16 Canadian Family Law Quarterly 145
Gottfried, Sarah, ‘Virtual visitation: the wave of the future in communication between children and non-custodial parents in relocation cases’ (2002) 36(3) Family Law Quarterly 475
Gray, Beatrice, ‘Relocation of a child’s residence: correct approach: guideline judgment’ (2000) 6(6) Current Family Law 246
Green M, ‘U v U, you v me, us v them’ (Paper presented at the 8th Australian Institute of Family Studies Conference, Melbourne, 12–14 February 2003), http://www.aifs.gov.au/institute/afrc8/green.pdf
Hocking, Barbara Ann & Guy, Scott, ‘Contemporary issues in Australian family law: do we need a more unified and interventionist judicial model?’ (2004) Singapore Journal of Legal Studies 76
Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Commonwealth of Australia, 1997
Hymowitz, Paul, ‘Relocation: parents’ needs, children’s interests’ in Linda Gunsberg & Paul Hymowitz (eds), A handbook of divorce and custody: forensic, developmental and clinical perspectives (2005) Hillsdale NJ: Analytic Press Inc, 301–314
Inglis BD, ‘The Care of Children Act and separated parents’ (2005) July The New Zealand Law Journal 233
Kaspiew, Rae, ‘Equal parenting or the effacement of mothers? B and B and the Family Law Reform Act 1995 (Cth)’ (1998) 12 Australian Journal of Family Law 69
Kay, Joseph, ‘International relocation through the prism of the rights of the child’ (Paper presented at the 4th International Congress on Family Law and Children’s Rights, Cape Town, 20–23 March 2005)
Kelly, Joan, ‘Enhancing resiliency in children’s adjustment to separation and divorce: research updates and implications for work with parents’ (Paper presented at the Family Services Australia National Conference, Sydney, October 2004), http://www.fsa.org.au/content-sections/files/Dr%20Joan%20Kelly_plenary_
Kelly, Joan B & Lamb, Michael E, ‘Developmental issues in relocation cases involving young children: when, whether and how?’ (2003) 17(2) Journal of Family Psychology 193
Kindregan, Charles P, ‘Family interests in competition: relocation and visitation (2003) 36 Suffolk University Law Review 31
Kirby, Michael, ‘Family law and human rights’ (2003) 17 AustralianJournal of Family Law 6
Kisthardt, Mary Kay, ‘Perspectives on the relocation of children’ (1998) 15 Journal of the American Academy of Matrimonial Lawyers 1
Lamb M, Sternberg K & Thompson R, ‘The effects of divorce and custody arrangements on children’s behaviour, development and adjustment’ in M Lamb (ed), Parenting and Child Development in ‘Non-Traditional’ Families (1999),125
May M, ‘Children on the move: review of relocation cases: 2001’ (Paper presented at the Family Court of Australia 25th Anniversary Conference, July 2001)
McGough, Lucy S, ‘Starting over: the heuristics of family relocation decision-making’ (2003) 77 St John’s Law Review 291
McIntosh, Jennifer, ‘Enduring conflict in parental separation: pathways of impact on child development’ (2003) 9(1) Journal of Family Studies 63
Melton-Hill, Susan ‘The tyranny of distance: international relocation re-examined’ (2005) 18(3) Australian Family Lawyer 5
Monaghan, David, ‘Can a contact parent contravene a contact order?’ (1999) 73 Australian Law Journal 20
Nicholson A, ‘Australian judicial approaches to international human rights conventions and ‘family law’’ (Paper presented at the Changing Legal Definitions of Family Conference, Cape Town, South Africa, March 2002), http://nla.gov.
Oldham, J Thomas, ‘Limitations imposed by family law on a separated parent’s ability to make significant life decisions: a comparison of relocation and income imputation’ (2001) 8 Duke Journal of Gender Law & Policy 333
Oliphant, Robert E, ‘Relocation custody disputes – a binuclear family-centred three-stage solution’ (2004–2005) 25 Northern Illinois University Law Review 363
Otlowski, Margaret, ‘Relocation case: ex-nuptial children born in the Northern Territory and resident in Western Australia – jurisdictional issues regarding appropriate guardianship regime – relevance of s 92 of the Constitution with regard to restraining custodial parent’s freedom of movement – principles applicable to relocation cases’ (1999) 5 Current Family Law 229
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Parkinson, Patrick, ‘New High Court decision on relocation’ (2002) 16(3) Australian Journal of Family Law 170
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Pettit, Becky, ‘Moving and children’s social connections: neighbourhood context and the consequences of moving for low-income families (2004) 19(2) Sociological Forum 285
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Spon-Smith, Robin, ‘Relocation revisited’  Family Law 191
Strum, Andrew, ‘Child relocation: easier, harder or the same?’ (2000) 6(4) Current Family Law 144
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Waldron, Kenneth, ‘A review of social science research on post-divorce relocation’ (2005) 19 Journal of the American Academy of Matrimonial Lawyers 337
Wallerstein, Judith S & Tanke, Tony J, ‘To move or not to move: psychological and legal considerations in the relocation of children following divorce’ (1996) 30(2) Family Law Quarterly 305
Warshak, Richard A; Braver S; Kelly J & Bray J et al (2003) Amici curiae brief on behalf of Lamusga children, filed in Cause No. S107355, Supreme Court of California
Warshak, Richard A, ‘Payoffs and pitfalls of listening to children’ (2003) 52(4) Family Relations 373
Warshak, Richard A, ‘Social science and children’s best interests in relocation cases: Burgess revisited’ (2000) 34(1) Family Law Quarterly 83
Watts, Garry, ‘Can we go or must we stay? Being able to relocate with the children’ (2002) 40(10) Law Society Journal 66
Worwood, Anna, ‘International relocation: the debate’  Family Law 621
Worwood, Anna, ‘International relocation of children: are our courts too mother-focussed?’  The Review 9
Yaeger, Kathleen, ‘An examination of relocation law in Massachusetts, Connecticut and Rhode Island: successful trends toward determining the best interests of the child’ (2005) 10 Suffolk Journal of Trial & Appellate Advocacy 153
Young, Lisa, ‘AIF v AMS: The High Court and relocation’ (1999) 13(3) Australian Journal of Family Law 264
Young, Lisa, ‘B and B: Family Law Reform Act 1995(Cth) – relocating the rights debate’ (1997) 21 Melbourne University Law Review 722
Young, Lisa, ‘U and U: reflections on the High Court and family law’ (2003) 28(2) Alternative Law Journal 78
Young, Lisa, ‘U and U: the High Court reconsiders relocation in the Family Court’ (2002) 6 University of Western Sydney Law Review 241
Australian cases A v A: Relocation approach (2000) FLC ¶93-035
AMS v AIF and AIF v AMS (1999) 199 CLR 160;  HCA 26
Functions of the Family Law Council The Family Law Council is a statutory authority which was established by section 115 of the Family Law Act 1975. The functions of the Council are set out in subsection 115(3) of the Act as follows.
It is the function of the Council to advise and make recommendations to the Attorney General, either of its own motion or upon request made to it by the Attorney General, concerning:
(a) the working of this Act and other legislation relating to family law;
(b) the working of legal aid in relation to family law; and
(c) any other matters relating to family law.
The Council may provide advice and recommendations either on its own motion or at the request of the Attorney General.
Membership of the Family Law Council (May 2006) Professor Patrick Parkinson, Chairperson
Ms Nicola Davies
Mr Kym Duggan
Federal Magistrate Mead
The Hon Susan Morgan
Mr Clive Price
Ms Susan Purdon
Justice Garry Watts
The following six agencies and the Family Law Section of the Law Council of Australia have observer status on the Council (with names of observers):
Australian Institute of Family Studies – Dr Bruce Smyth
Australian Law Reform Commission – Ms Kate Connors
Child Support Agency – Ms Yvonne Marsh
Family Court of Australia – Ms Angela Filippello and Ms Dianne Gibson
Family Court of Western Australia – Principal Registrar David Monaghan
Federal Magistrates Court of Australia – Mr John Mathieson
Family Law Section of the Law Council of Australia – Ms Maurine Pyke
Membership of the Paramountcy Committee
The members of the committee who prepared this report are:
The following is the text of a letter of advice from the Family Law Council to the Attorney-General on 17 January 2006 after the Council’s consideration of the paramountcy principle in the Family Law Act.
Dear Attorney General
Family Law Council Advice on the ‘Child Paramountcy Principle’ in the Family Law Act1. BACKGROUND AND TERMS OF REFERENCE
In May 2000 the Family Law Council discussed the amendments made to the Family Law Act 1975 by the Family Law Reform Act 1995 in relation to the paramountcy principle (the rule that the best interests of the child must be regarded as the paramount consideration when making specified decisions in the Family Law Act 1975).
Council appointed a committee to develop draft terms of reference which were approved by the Attorney-General on 9 October 2000. On 3 June 2003 the Attorney-General agreed to extend the terms of reference to include an examination of relocation cases. The final terms of reference are:
1. To examine the nature and application of the legal principle that the child’s best interests must be regarded as the paramount consideration in family law litigation concerning children and to consider whether the Family Law Act 1975 should be amended in this respect.
The Council shall have particular regard to:
the law before and after the Family Law Reform Act 1995; and
the nature and scope of similar provisions in other jurisdictions.
2. To examine:
(1) How the best interests of the child principle set out in section 65E of the Family Law Act operates in relation to other legitimate interests in a relocation case;
(2) How best to take account of the interests of other children who may be affected by the relocation decision but are not the subject of proceedings;
(3) How best to take account of the interests of other people affected by the relocation decision;
(4) The significance of section 92 of the Constitution for the law of relocation;
(5) Approaches to the problem of relocation in other jurisdictions; and
(6) Whether the Family Law Act should be amended to provide specific criteria for making relocation decisions.
2. DISCUSSION PAPER
In December 2004 the Council released a discussion paper titled The ‘Child Paramountcy Principle’ in the Family Law Act. The scope of the discussion paper was limited to paragraph 1 of the terms of reference and did not examine the operation of the principle that the child’s best interests should be the paramount consideration (hereafter referred to as the “paramountcy principle”) in relocation cases. Council will release a separate discussion paper on this second aspect of the terms of reference.
The discussion paper was sent to 53 individuals and organisations and made available on Council’s website. Submissions and comments on the discussion paper were initially sought by 6 May 2005, although the closing date was later extended to 30 June 2005. Council received 12 submissions by 30 June 2005. Seven of the submissions were from legal practitioner groups, including Law Societies. Two of the submissions were from academics, one was from a men’s support group and two were from private citizens. A list of people and organisations who prepared submissions is provided in appendix A.
Council is very grateful for the time and effort individuals and organisations spent in the preparation of their submissions. It should be noted that some of the submissions went beyond the ambit of Council’s inquiry and included comment on relocation, for example. Those which addressed relocation will be taken into account when Council considers this issue and will not need to make separate submissions on the discussion paper on relocation (but will of course be free to do so).
The purpose of the discussion paper was to explain the existing provisions of the Family Law Act 1975 (the Family Law Act) and review how they have operated, having regard to the way they have been interpreted. The effect of the 1995 amendments to the Family Law Act was to restrict the application of the paramountcy principle to particular sections of Part VII.
The discussion paper spells out the paramountcy principle as applying when:238
revoking, varying or setting aside a parenting plan that was registered prior to the Family Law Amendment Act 2003: sections 63E, 63F, 63H
making parenting orders: section 65E
making an order that a counsellor is required to supervise or assist compliance with parenting orders: subsection 65L(2)
making location and recovery orders: sections 67L and 67V
making orders relating to the welfare of children: section 67ZC, and
varying parenting orders following contravention: subsection 70NJ(5).
In the following instances the paramountcy principle does not apply, although the child’s best interests will nevertheless be considered when the court exercises its discretion.239
When considering whether to grant leave for proceedings to be commenced for the adoption of a child section 60G.
When making an injunction: section 68B.
When varying contact orders in family violence proceedings: subsection 68T(2).
In proceedings under the Family Law (Child Abduction Convention) Regulations 1986 the principle does not apply. This is because such proceedings are not “proceedings for a parenting order” as required by section 65E of the Family Law Act.240
The next part of the discussion paper reviewed case law on the application of the paramountcy principle in specific contexts.241 The case law shows that there are a number of instances where the paramountcy principle does not expressly apply, but the courts regard the child’s best interests as a relevant consideration. For example, in CDJ v VAJ242 the High Court held that even though the paramountcy principle does not apply expressly in statute, the child’s best interests will remain a significant or “powerful” consideration in an order admitting or rejecting fresh evidence on appeal. In cases involving questions of jurisdiction, the child’s interests are also relevant.243 There are also cases which have confirmed when the best interests of the child are not the paramount consideration, for example, when a parentage test is being ordered.244
The third part of the paper reviewed comparable legislation in the United Kingdom and New Zealand. The case law in these countries offers some examples of situations where the paramountcy principle has been invoked and where it would not have been applied in Australia.
The discussion paper then invited comment on 3 specific questions, which will be outlined in part 4 below, along with a detailed discussion of the responses in the submissions.
3. RECENT DEVELOPMENTS
Since the release of Council’s discussion paper, the Government prepared an exposure draft Family Law Amendment (Shared Parental Responsibility) Bill 2005 (the Bill) which was referred to the House of Representatives Standing Committee on Legal and Constitutional Affairs (the Committee) for inquiry. The Committee reported on 18 August 2005 and made 59 recommendations about the Bill. Two of the recommendations specifically relate to the paramountcy principle – recommendations 16 and 17 which are set out in full below:
The Committee recommends:
(a) co-locating section 65E related to the best interests of the child as the paramount consideration in parenting orders and section 68F related to how the court determines what is in the best interests of the child at the start of subdivision 5 of Part VII about parenting orders; and
(b) proposed Division 1A come later in the Act.
The Committee recommends that the objects set out in proposed subsection 60B(1) of Part VII be amended to:
(a) make more explicit reference to the need for consistency and the paramountcy of the best interests of the child; and
(b) to recognise as an object the safety of the child (as currently set out in proposed paragraph 60B(2)(b) of the Bill (as amended by recommendation 16).
The Government responded to the recommendations made by the Committee on 8 December 2005 (the same day as the Bill was introduced in the House of Representatives). The Government agreed with both of the above recommendations of the Committee and, if passed, the Bill will implement the recommendations. Therefore the proposed changes have been taken into account in preparing this advice.
4. RESPONSES TO QUESTIONS FOR CONSULTATION In part 4 of the discussion paper, Council expressed a tentative view and invited comment.245 This was that the restriction of the principle to an enumerated list of specific decisions was appropriate. Indeed Council’s examination of the case law since 1995 suggested that the present legislation makes sense. In particular, when considering the decisions to which the paramountcy principle does not apply Council noted that those decisions involve balancing the child’s interests against some other interests.
The New South Wales Bar Association, Family Law Section of the Law Council of Australia and the Law Society of Tasmania all stated in their submission that they support Council’s tentative view.
There were three submissions which propose an alternative formulation of the paramountcy principle, beyond just extending or removing its application. These submissions were from the Family Issues Committee of the Law Society of New South Wales, National Legal Aid and MacLean and Batagol.
The Family Issues Committee of the Law Society of New South Wales submits that there should be a general statement of the paramountcy principle within the Family Law Act, with enumerated exceptions. MacLean and Batagol also submit that the paramountcy principle should be expressed in a single section, like subsection 1(1) of the UK Children Act 1989, which provides that:
When a court determines any question with respect to –
the upbringing of a child; or
the administration of a child’s property or the application of any income arising from it,
the child’s welfare shall be the paramount consideration.
National Legal Aid submitted that the paramountcy principle should apply to all proceedings in relation to parenting orders, not just the making of parenting orders per se. National Legal Aid support enumerated exceptions, although did not recommend the same exceptions as the Family Issues Committee of the Law Society of New South Wales.
Council is of the view that the approach outlined by the Family Issues Committee of the Law Society of New South Wales, National Legal Aid and MacLean and Batagol have merit. The advantage of a general statement of the paramountcy principle with enumerated exceptions would be that people would not have to refer to case law to understand the application of the paramountcy principle. Increasing clarity of family law is a worthy objective. It has to be recognised that re writing the sections of the Family Law Act that apply the paramountcy principle may not be sufficient to increase the clarity of the law, though, and the whole of Part VII may need to be re drafted to ensure the provisions operate in a coherent way.
The Family Law Act is being amended at a rapid rate. If the amendments in the Bill are passed, this is likely to create some confusion amongst the community (at least initially). It will also take some time for judicial interpretation of the new provisions to clarify their operation. For this reason, Council is reluctant to recommend a major departure from the paramountcy principle, beyond the proposals in the Bill.
Council has concluded that if the whole of the Family Law Act is to be re written in line with recommendation 49 made by the Committee, then a clear statement of the paramountcy principle should be included as part of this re write. The exceptions to the paramountcy principle would need to be determined and be clearly stated. In general at least, in Council’s view it would be appropriate to formulate those exceptions to incorporate the position expressed in case law. The Government’s response to recommendation 49 was to agree in principle, but note that “this is a matter for the Parliamentary Business and Budget process”.
As noted in part 2, the discussion paper posed 3 specific questions for comment. The responses to these questions will now be considered in turn.
1. Taking account of the observations of the High Court in CDJ v VAJ, and the differences of view in the High Court in Northern Territory of Australia v GPAO are there any decisions where the paramountcy principle:
(a) does not currently apply to which it should be made applicable?
(b) currently applies to which it should be made inapplicable? Some submissions suggest the paramountcy principle should be made applicable in two areas where it does not currently apply. These are parentage testing and the situation which arose in Northern Territory of Australia v GPAO246about production of documents and inconsistent Commonwealth and Territory laws.
Firstly, the National Network of Women’s Legal Services (NNWLS) submits that “the best interests of the child should be the paramount consideration in determining whether parentage testing is ordered. At the very least, it should be a significant consideration”. The NNWLS suggests that it is likely that different or additional factors would need to be specified in the legislation for determining the best interests for this purpose and submits that this requires further research and consideration.
If the Family Law Act was to be amended to make the best interests of the child a “significant consideration”, it would not change current practice. Therefore Council has concluded that there should be no change to the current parentage testing provisions in this regard.
Secondly, in Northern Territory of Australia v GPAO, the High Court was called upon to consider whether as the Full Court of the Family Court had held, the paramountcy principle overrode other inconsistent statutory provisions. The High Court was satisfied that both the paramountcy principle and the Territory immunity operated freely each in their proper sphere. This raises significant issues beyond the paramountcy principle, which concern Commonwealth/State relations.
In their submission the Family Law Section of the Law Council of Australia “strongly recommends” that the principle be extended to cover situations where state/territory provisions regarding the production of documents from welfare authorities are inconsistent with Part VII of the Family Law Act. Both National Legal Aid and the Family Issues Committee of the Law Society of New South Wales argue that a statement of the paramountcy principle alone would not be specific enough to address the difficulty highlighted in the NT v GPAO decision. They suggest a provision in the Family Law Act that requires production of evidence in the best interests of the child where that evidence would otherwise be protected by state legislation, subject to a number of safeguards. The safeguards could include, for example, that it can be demonstrated to the court that it is probable that the documents will be relevant to determining the best interests of the child and that it can be demonstrated that no alternate source can be identified for the material likely to be found in the documents.
Council is merely drawing the content of these three submissions to your attention and will not make any recommendations. To do so would be likely to go beyond the scope of Council’s terms of reference.
2. Should the law be amended to allow the paramountcy principle to qualify the application of the Evidence Act1995 (Cth) in any circumstances?
The majority of the submissions Council received do not support any amendment to allow the paramountcy principle to qualify the application of the Evidence Act1995 (Cth) in any circumstances and Council supports no change. If any change was necessary, it would be preferable to amend the Family Law Act, rather than the Commonwealth Evidence Act, as the Evidence Act does not apply to the Family Court of Western Australia.
Council notes that schedule 3 of the Bill (dealing with less adversarial procedures for children’s cases), if passed, is likely to reduce the need for any amendment.
3. Are there specific applications of the paramountcy principle where it would be appropriate to list other factors which should be considered while treating the best interests of the child as paramount? Professor Henaghan submits that without qualifying principles, the paramountcy principle can mean whatever a judge wants it to mean. He favours a clear statement of what the paramountcy interests are and what they are not and submits that if other interests are to be taken into account, they should be made apparent through legislation. Professor Henaghan notes that New Zealand’s Care of Children Act 2004 sets out principles relevant to the welfare and best interests of the particular child. Sections 4 and 5 of that Act are provided in appendix B.
Council neither accepts nor rejects Professor Henaghan’s view at this stage, but will take this proposal into account as part of our consideration of the operation of the paramountcy principle in relocation cases. The terms of reference require Council to consider other interests affected by relocation decisions.
5. CONCLUSION AND RECOMMENDATIONS In light of the proposed amendments to the paramountcy principle in the Bill before Parliament, Council does not see any justification for recommending further changes to the paramountcy principle as currently drafted. However, if the whole Family Law Act is to be re-written at some time in the future, Council recommends that a clear statement of the paramountcy principle with enumerated exceptions should incorporated in the Family Law Act as part of that re write.
Professor Patrick Parkinson
1 Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, The Family Law Act 1975: aspects of its operation and interpretation (November 1992) at 154–158; Family Law Pathways Advisory Group, Out of the maze: pathways to the future for families experiencing separation (July 2001) at 51; House of Representatives Standing Committee on Family and Community Affairs, Every picture tells a story: report on the inquiry into child custody arrangements in the event of family separation (December 2003) at 32–33; House of Representatives Standing Committee on Legal and Constitutional Affairs, Report on the exposure draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (August 2005) at 22–24.