(Almost) all you wanted to know about the changes to the Family Law Act

Sunday, March 09, 2008

This is a long paper about the changes to the parenting provisions of the Family Law Act:

Philip’s Legacy:

Family Law Amendment (Shared Parenting Responsibility) Act 2006

1. What were the changes?

(1) Establishment of a network of family relationships and accreditation of family dispute resolution practitioners.

(2) The creation of a combined Family Law Registry for the Family Court of Australia and the Federal Magistrates Court of Australia.

(3) The creation of a less adversarial approach to children’s cases.

(4) A greater emphasis on shared parental responsibility.

Family Relationship Centres

From 1 July 2006 there has been a network of Family Relationship Centres set up throughout Australia with a number of centres in the Brisbane area being at Strathpine, Ipswich, Logan and Upper Mt. Gravatt. The centres are auspiced by community organisations, such as Relationships Australia Queensland but run on strict procedures provided by the Australian Government. The key feature of the centres are that they provide up to three hours free counselling for one or both parties.

The parties in any case can attend upon a family dispute resolution practitioner.

2. A Little History Lesson

The Family Law Amendments (Shared Parenting Responsibility) Act 2006 came into effect on 1st July 2006. Some provisions that this Act, such as less adversarial proceedings applied after 1st July 2006. Some of the changes, particularly compulsory attendance upon a Family Dispute Resolution practitioner, came into effect on 1st July 2007.

2. The Government’s Case

The Government stated that the system was being changed.

What is the focus of the changes?

What was supposed to be the main focus of the changes is that children come first.

3. Summary of the changes

Establishment of a network of Family Relationship Centres
The creation of a combined family law registry for the Family Court of Australia and the Federal Magistrates Court of Australia
The creation of a less adversarial approach to children’s cases; and
A greater emphasis on shared parental responsibility.

4. Family Relationship Centres

4.1 What the Howard government said:

“The Centres aim to provide assistance to couples and families immediately following and during separation, helping them establish positive post-separation relationships as early as possible, while focusing on the best interests of their children. The Centres will also help couples access pre-marriage education and help families who are experiencing relationship difficulties with information and access to family skills training and support.

These Centres will provide a number of preliminary information services such as telephone advice lines and website information. Additionally, the Family Relationship Centres will provide dispute resolution programs that will assist parents in establishing parenting agreements prior to going to the courts.

These Centres have developed several services which will assist families, including :-

The early intervention services program will assist all family members at various stages of their relationships – that is, beginning, during and through separation and divorce.
During initial processes, Family Relationship Centres will be screening cases for violence or child abuse and refer such cases to support services and direct to the courts where appropriate.
The establishment of the Family Dispute Resolution Service aims to assist separated families to settle their disputes and deal with conflict issues.
The children’s contact services will aim to assist separated parents to maintain contact with their children.
The contact orders program aims to assist families to carry out the court orders with respect to contact in a manner that promotes the avoidance of the conflict. This program will also assist parents when there has been a breach of court contact orders, they will aim to resolve disputes between parents with respect to the breach.”

4.2 The fine print

Some details about Family Relationships Centres.

The requirement as of 1 July 2007 is with the exception of:

urgent applications
consent orders
being a respondent to an application for final orders in children’s proceedings
cases involving family violence
cases involving child abuse
inability of a party to attend
contravention proceedings brought within a year of an order when there looks as though there has been a serious breach
the parties must attend a registered family dispute resolution practitioner and obtain the appropriate certificate before going to court about children’s issues.

It is not a requirement that they attend a Family Relationships Centre. The latter may well be attractive in part because the parties have 3 hours free counselling/mediation as opposed to having to pay.

I do know:

There are guidelines in place to exclude domestic violence cases from attending Family Relationships Centres.
There are separate intake procedures for each of the parties:
But

I have heard varying reports about the effectiveness of Family Relationships Centres. I have heard from other practitioners criticism about changeover of staff and delays in getting in but I simply don’t know whether that is accurate.
No doubt, time will tell.

The certificates by Family Dispute Resolution Practitioners now exist. You ought to be very careful about whom you see and what is said because of the potential for the certificate to say the person did not attend or that the client did not make a genuine effort to resolve the issue or issues. I have highlighted certain portions of the certificate.

A full listing of Family Relationships Centres and Family Dispute Resolution Practitioners can be found at www.familyrelationships.gov.au.

The Register of Family Dispute Resolutions Practitioners can be found at

http://fdrregister.familyrelationships.gov.au/Search.aspx

Certificate by family dispute resolution practitioner

Section 60I of the Family Law Act 1975 (Cth) / Section 66H Family Court Act 1997 (WA)

Dispute about matters that may be dealt with under Part VII (FLA) / Part V (FCA) between

________________________________________________________________

(parties)

in relation to

________________________________________________________________

(issues in dispute)

I, __________________________________________________ state:

(*Name of family dispute resolution practitioner)

(a) _______________________________________________ (party or parties) did not attend

family dispute resolution with me and the other party or parties to the proceedings but that

person’s failure to do so was due to the refusal, or the failure, of the other party or parties to the

proceedings to attend.

(b) ________________________________________________ (party or parties) did not attend

family dispute resolution with me and the other party or parties to the proceedings because I

consider, having regard to the matters mentioned in subregulation 62 (2)

(Family Law Regulations 1984 (Cth)) / regulation 10 (Family Court Regulations 1998 (WA)), that

it would not be appropriate to conduct the proposed family dispute resolution.

resolution with me and all attendees made a genuine effort to resolve the issue or issues in

dispute.

(d) _______________________________________________ (party or parties) attended family

dispute resolution with me and the other party or parties to the proceedings but

__________________________________ (party or parties) did not make a genuine effort to

resolve the issue or issues in dispute.

______________________________(*Name of family dispute resolution practitioner)

______________________________(**Signature of family dispute resolution practitioner)

______________________________ (Registration Number)

______________________________ (Organisation, if applicable)

______________________________(Date of certificate)

______________________________(Date of last attempted attendance at family dispute

resolution (for (a )and (b))

OR (Date of last attendance at family dispute resolution (for

Section 60I

60I Attending family dispute resolution before applying for Part VII order

Object of this section

(1) The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.

Phase 1 (from commencement to 30 June 2007)

(2) The dispute resolution provisions of the Family Law Rules 2004 impose the requirements for dispute resolution that must be complied with before an application is made to the Family Court of Australia for a parenting order.

Section 60I

(3) By force of this subsection, the dispute resolution provisions of the Family Law Rules 2004 also apply to an application to a court (other than the Family Court of Australia) for a parenting order. Those provisions apply to the application with such modifications as are necessary.

(4) Subsection (3) applies to an application for a parenting order if the application is made:

(a) on or after the commencement of this section; and

(b) before 1 July 2007.

Phase 2 (from 1 July 2007 to first proclaimed date)

(5) Subsections (7) to (12) apply to an application for a Part VII order in relation to a child if:

(a) the application is made on or after 1 July 2007 and before the date fixed by Proclamation for the purposes of this paragraph; and

(b) none of the parties to the proceedings on the application has applied, before 1 July 2007, for a Part VII order in relation to the child.

Phase 3 (from second proclaimed date)

(6) Subsections (7) to (12) apply to all applications for a Part VII order in relation to a child that are made on or after the date fixed by Proclamation for the purposes of this subsection.

Requirement to attempt to resolve dispute by family dispute resolution before applying for a parenting order

(7) Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.

Certificate by family dispute resolution practitioner

(8) A family dispute resolution practitioner may give one of these kinds of certificates to a person:

(a) a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but the person’s failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend;

(aa) a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution;

(b) a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, and that all attendees made a genuine effort to resolve the issue or issues;

(c) a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues.

Note: When an applicant files one of these certificates under subsection (7), the court may take the kind of certificate into account in considering whether to make an order referring to parties to family dispute resolution (see section 13C) and in determining whether to award costs against a party (see section 117).

Exception

(9) Subsection (7) does not apply to an application for a Part VII order in relation to a child if:

(a) the applicant is applying for the order:

(i) to be made with the consent of all the parties to the proceedings; or

(ii) in response to an application that another party to the proceedings has made for a Part VII order; or

(b) the court is satisfied that there are reasonable grounds to believe that:

(i) there has been abuse of the child by one of the parties to the proceedings; or

(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or

(iii) there has been family violence by one of the parties to the proceedings; or

(iv) there is a risk of family violence by one of the parties to the proceedings; or

(i) the application is made in relation to a particular issue;

(ii) a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;

(iii) the application is made in relation to a contravention of the order by a person;

(iv) the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or

(d) the application is made in circumstances of urgency; or

(e) one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or

(f) other circumstances specified in the regulations are satisfied.

Referral to family dispute resolution when exception applies

(10) If:

(a) a person applies for a Part VII order; and

(b) the person does not, before applying for the order, attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with; and

(c) subsection (7) does not apply to the application because of subsection (9); the court must consider making an order that the person attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to that issue or those issues.

(11) The validity of:

(a) proceedings on an application for a Part VII order; or

(b) any order made in those proceedings; is not affected by a failure to comply with subsection (7) in relation to those proceedings.

(12) In this section:

dispute resolution provisions of the Family Law Rules 2004 means:

(a) Rule 1.05 of those Rules; and

(b) Part 2 of Schedule 1 to those Rules; to the extent to which they deal with dispute resolution.

4.3 Commentary

The certificates are :-

Blaming the other party for the failure to turn up;
Because the practitioner considers that it would not be appropriate to conduct the proposed family dispute resolution;
That all parties made a genuine effort to resolve the issue;
That the other party did not make a genuine effort to resolve the issue.

The criticism that is made of this provision is that it gives undue power to the family dispute resolution practitioner to determine whether or not a party made a genuine effort. Imagine the situation when a woman, the subject of severe domestic violence, is of the view that the father should have no contact and the family dispute resolution practitioner forms a view that because she is not agreeable to contact occurring she has not made a “genuine effort” then, except in one of the circumstances in (9) she cannot make an application to the court.

4.4 The Exceptions

Consent proceedings – obviously consent proceedings should not require the involvement of the Family Relationships Centre.
Being a respondent to an application for a parenting order. If you are the respondent to an application for property settlement and intend, as part of saving costs, to at the same time, apply for orders in relation to your children you cannot do so unless you fit within one of the exceptions.
Child abuse – child abuse has been and continues to be defined restrictively under the Family Law Act. The current definition of abuse within the Family Law Act provides:

abuse, in relation to a child, means:

“An assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the Act constituting the assault occurs; or
A person involving the child in the sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first mentioned person or the other person, and where there is unequal power in the relationship between the child and the first mentioned person.” Now to be in section 4(1).
Family violence – family violence is now defined (Section 4(1)) as meaning “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 well-being or safety: Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal well-being or safety in particular circumstances if a reasonable person in those circumstances were fearful, or be apprehensive about, his or her personal well-being or safety.” (emphasis added)
This change to a requirement of “reasonableness” came about from the House report at paragraph 2.119:

“While the Committee notes that the definitions of family violence and abuse were not an issue addressed by either the FCAC report or the government’s response, the Committee has concerns that false allegations could be made and considers the definition of family violence would be better qualified by inserting an objective element into the existing definition.”

The definition of “family violence” is in some ways wider than that contained under the Domestic and Family Violence Protection Act 1989 in that there is no restriction on violence towards children or by a child towards the child’s parents, but in other ways it is narrower in that :-

It is restricted only towards family members (and there is a definition of those in s. 4(1); and
it therefore does not cover intimate personal relationships or some informal care relationships.
The definition of “family violence” is wider than “abuse” when it relates to a child in that it would appear to also include acts of harassment or intimidation which are not included in the definition of “abuse”.

A contravention application has been brought within a year of the orders and the court finds that there has been a serious disregard for the person’s obligations under the order. Currently there are many self-represented litigants who make contravention applications which are of a vexatious and harassing nature. Unless that applicant can show that the conduct the subject of that application involves a “serious disregard”, it is likely that application will be dismissed and if the respondent is legally represented a substantial of the costs against the applicant.
The application is made in circumstances of urgency.
One or other of the parties is unable to participate effectively in family dispute resolution including:-
an incapacity of some kind;
physical remoteness from dispute resolution services.
some other circumstance specified in the regulations. There have not yet been regulations proclaimed.

To meet the requirement as to family violence or abuse, one needs to establish on “reasonable grounds” to the court that either there has been child abuse of the child the subject of the proceedings by one of the parties or family violence by one of the parties or a risk of either.

60J Family dispute resolution not attended because of child abuse or family violence

(1) If:

(a) subsections 60I(7) to (12) apply to an application for a Part VII order (see subsections 60I(5) and (6)); and (b) subsection 60I(7) does not apply to the application because the court is satisfied that there are reasonable grounds to believe that:

(i) there has been abuse of the child by one of the parties to the proceedings; or

(ii) there has been family violence by one of the parties to the proceedings;

a court must not hear the application unless the applicant has indicated in writing that the applicant has received information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to court action) available in circumstances of abuse or violence.

(2) Subsection (1) does not apply if the court is satisfied that there are reasonable grounds to believe that:

(a) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or

(b) there is a risk of family violence by one of the parties to the proceedings.

(3) The validity of:

(a) proceedings on an application for a Part VII order; or

(b) any order made in those proceedings;

is not affected by a failure to comply with subsection (1) in relation to those proceedings.

(4) If:

(a) the applicant indicates in writing that the applicant has not received information about the services and options (including alternatives to court action) available in circumstances of abuse or violence; and

(b) subsection (2) does not apply;

the principal executive officer of the court concerned must ensure that the applicant is referred to a family counsellor or family dispute resolution practitioner in order to obtain information about those matters.

There is now a form to be filled out about these. However, there is appositive obligation under the Family Law Act to file a form 4 Notice of Abuse or risk of abuse or Family violence or risk of violence. This ought to be done and ought to be filled out very carefully. A copy needs to be served (in cases of allegations of abuse) on the Department of Child Safety as well as the other party, and on the alleged perpetrator.

Some Registrars refuse to take these unless they are accompanied by an appropriate affidavit. One would expect that an affidavit properly detailing the violence and abuse would be filed anyway.

Ordinarily there will be a requirement, even in circumstances of urgency, one might suggest, in which abuse or family violence is an issue, to provide to the court a document stating that the applicant has received information from a family counsellor or family dispute resolution practitioner about the services and options (involving alternatives to court action) available in the circumstances of abuse or violence.

The key phrase is reasonableness. It is incumbent upon those saying that they have been subject to family violence or their children the subject of child abuse to present clear and cogent evidence to the court of this, if they wish to avoid attending a family relationship centre. Presentation of a temporary protection order will not be enough.

It will NOT be sufficient merely to show the sketch of the dots of violence or abuse, but to show the violence and abuse in full colour with all the cacophony that can be mustered so that the court is aware of EXACTLY what has happened.

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

(1) This section applies if:

(a) an application is made to a court for a Part VII order in relation to a child; and

(b) a document is filed in the court, on or after the commencement of this section, in relation to the proceedings for the order; and

(c) the document alleges, as a consideration that is relevant to whether the court should grant or refuse the application, that:

(i) there has been abuse of the child by one of the parties to the proceedings; or

(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or

(iii) there has been family violence by one of the parties to the proceedings; or

(iv) there is a risk of family violence by one of the parties to the proceedings; and

(d) the document is a document of the kind prescribed by the applicable Rules of Court for the purposes of this paragraph.

(2) The court must:

(a) consider what interim or procedural orders (if any) should be made:

(i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and

(ii) to protect the child or any of the parties to the proceedings; and

(b) make such orders of that kind as the court considers appropriate; and

(2A) The court must take the action required by paragraphs (2)(a) and (b):

(a) as soon as practicable after the document is filed; and

(b) if it is appropriate having regard to the circumstances of the case—within 8 weeks after the document is filed.

(3) Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain reports from State and Territory agencies in relation to the allegations.

(4) Without limiting paragraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.

(5) A failure to comply with a provision of this section in relation to an application does not affect the validity of any order made in the proceedings in relation to the application.

Once lodged, the court needs to take certain steps. It is still unclear to me as to what steps the court in fact takes. From what I have seen, the courts have not taken any other steps than they did beforehand.

5. Combined Registries

The Family Court of Australia and the Federal Magistrates Court of Australia have from 1 July 2007, in all States and Territories (except Western Australia) have a combined family law registry. There won’t be a combined registry in Western Australia because Western Australia, of all the States, took the option of a separate Family Court of Western Australia.

The proposal essentially works like this :-

There will be one registry called “The Family Law Courts” with one 1300 number to a national call centre, based in Sydney.
Practitioners decide on filing whether the matter is to be a Federal Magistrates Court or a Family Court matter. If the practitioner does not send a convincing letter, the default approach is likely to be taken and put it in the Federal Magistrates Court.

In Brisbane, in particular, there have been ongoing current difficulties with the volume of work before the Federal Magistrates Court and it was not known how that court will cope with the extra volume of work in matters that are currently filed before the Family Court. The Federal Magistrates, by working phenomenal hours, and with the assistance of new appointments, have managed to cut through this workload.

The hope is that less complex matters will be able to be dealt with quicker, simpler and cheaper in the Federal Magistrates Court and more complex matters will be able to be transferred quickly to the Family Court.

Tactically, it may be to the advantage (or be perceived to be to the advantage) of a party to remain in the Federal Magistrates Court or to be transferred to the Family Court. The decision to transfer or not transfer is not appealable: section 39(6) Federal Magistrates Court Act 1999 and it may be imperative that if a party believes that the matter ought to be transferred that adequate resources are devoted at the commencement of the matter to enable this to occur.

5. A less adversarial approach to children’s cases

One of the clear approaches that the Federal Magistrates Court has taken (as compared to the Family Court) has been of a less formal approach in children’s matters. For some time now, the Family Court has rolled out what is currently called the less adversarial trial program which is touted as being a much more informal and child focused method of litigation. Essentially parties are sworn in at the bar table, are encouraged to speak directly to the Judge (but that speaking is taken as evidence), there are multiple short hearings with multiple family reports being obtained.

There is a new Division 12A to Part VII of the Family Law Act “Principles for conducting child related proceedings”.

69ZM Proceedings to which this Division applies

(1) This Division applies to proceedings that are wholly under this Part.

(2) This Division also applies to proceedings that are partly under this Part:

(a) to the extent that they are proceedings under this Part; and

(b) if the parties to the proceedings consent—to the extent that they are not proceedings under this Part.

(3) This Division also applies to any other proceedings between the parties that involve the court exercising jurisdiction under this Act and that arise from the breakdown of the parties’ marital relationship, if the parties to the proceedings consent.

(4) Proceedings to which this Division applies are child-related proceedings.

(5) Consent given for the purposes of paragraph (2)(b) or subsection (3) must be:

(a) free from coercion; and

(b) given in the form prescribed by the applicable Rules of Court.

(6) A party to proceedings may, with the leave of the court, revoke a consent given for the purposes of paragraph (2)(b) or subsection (3).

Subdivision B—Principles for conducting child-related

proceedings

69ZN Principles for conducting child-related proceedings

Application of the principles

(1) The court must give effect to the principles in this section:

(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and

(b) in making other decisions about the conduct of child-related proceedings.

Failure to do so does not invalidate the proceedings or any order made in them.

(2) Regard is to be had to the principles in interpreting this Division.

Principle 1

(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

Principle 2

(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

Principle 3

(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:

(a) the child concerned against family violence, child abuse and child neglect; and

(b) the parties to the proceedings against family violence.

Principle 4

(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.

Principle 5

(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

There is also a change to Section 190(1) of the Evidence Act 1995 (Cth) which provides that “child related proceedings are to be covered under the Family Law Act.” Obviously, if parties have both property or related proceedings and child proceedings in one set of proceedings, two rules of evidence might apply.

69ZT Rules of evidence not to apply unless court decides

(1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:

(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;

Note: Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.

(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);

(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).

(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:

(a) the court is satisfied that the circumstances are exceptional; and

(b) the court has taken into account (in addition to any other matters the court thinks relevant):

(i) the importance of the evidence in the proceedings; and

(ii) the nature of the subject matter of the proceedings; and

(iii) the probative value of the evidence; and

(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.

(5) Subsection (1) does not revive the operation of:

(a) a rule of common law; or

(b) a law of a State or a Territory; that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection

Principle 1

In other words, the court must have a child focus. The second part of this is the impact that the “conduct” of the proceedings may have on the child, it may have some significant impact on the proceedings.

Principle 2

(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

Concern has been expressed that this may mean (although dealt within Principle 3) that issues of abuse and family violence may not be thoroughly aired.

Principle 3

(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:

(a) the child concerned against family violence, child abuse and child neglect; and

(b) the parties to the proceedings against family violence.

Currently, in State Courts, there may be the ability to have an aggrieved give evidence behind a screen or in certain cases give evidence by video link. There are also prohibitions in certain cases of the accused from cross-examining a complainant in a sexual abuse matter if the accused is self-represented. These possibilities of procedure may now be open in appropriate cases. I am not aware of this procedure being adopted in the Federal Magistrates or Family Courts.

Principle 4

(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.

There is some conflict between Principles 3 and Principles 4. It is unknown how this will impact in practice.

(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

It is unknown how the laws on hearsay will now be treated. In child protection proceedings, there is a general discretion to allow all evidence in, including hearsay evidence: s.105(1) Child Protection Act 1999. In domestic violence proceedings, there is ability for the court to inform itself as it sees fit: Section 84 Domestic and Family Violence Protection Act 1989. It will be some considerable time before we know the effect of this principle. What we know about the hearsay rule in domestic violence proceedings is that it can be applied inconsistently by magistrates and it is important, as ever, to ensure that a case is thoroughly prepared. Just because evidence is admissible does not mean that it has any particular weight.

Further qualifiers to the principles

69ZQ General duties

(1) In giving effect to the principles in section 69ZN, the court must:

(a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and

(b) decide the order in which the issues are to be decided; and

(d) in deciding whether a particular step is to be taken—consider whether the likely benefits of taking the step justify the costs of taking it; and

(e) make appropriate use of technology; and

(f) if the court considers it appropriate—encourage the parties to use family dispute resolution or family counselling; and

(g) deal with as many aspects of the matter as it can on a single occasion; and

(h) deal with the matter, where appropriate, without requiring the parties’ physical attendance at court.

(2) Subsection (1) does not limit subsection 69ZN(1).

(3) A failure to comply with subsection (1) does not invalidate an order.

The most concerning part in Section 69ZQ(1)(a) is whether the court is of the view that domestic violence does not require full investigation and hearing and be of the view that the issue can be disposed of summarily. No doubt, this will be an issue for appeal for years to come.

69ZR Power to make determinations, findings and orders at any stage of proceedings

(1) If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:

(a) make a finding of fact in relation to the proceedings;

(b) determine a matter arising out of the proceedings;

Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.

(2) Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.

(3) To avoid doubt, a judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.

The court has the ability to make a finding of fact at an early stage. For example, the court could find that the father has engaged in domestic violence towards the mother. Alternatively, although the mother might contend there has been domestic violence, the court might without testing the evidence thoroughly, form the view that it has not occurred.

These provisions might require lawyers with the highest advocacy skills to ensure that premature findings are not made which might greatly disadvantage their clients during the course of litigation. Some judges are seeking to have agreed facts reached at an early stage. Whilst superficially attractive, this could contain many traps for an unwary party who is seeking to show that not only has there been domestic violence, but it was not isolated episodes, but part of a pattern of control and intimidation. It is imperative that parties are properly represented in preparing for and in appearing at these hearings.

Currently, judges or registrars hearing interim residence matters do not make findings about credit issues, such as whether or not domestic violence has occurred (to which I will make more reference as to Goode and Goode below). The great limitation to this identified by survivors of domestic violence is that they are supposed to put their lives on hold for a year or two and in the meantime feel as though no one has believed them.

The risk in having an early finding made about this is that it may deny natural justice either to the person accused of having committed the domestic violence or to the survivor. Often the truth only comes out under vigorous cross-examination and it will really depend on how the courts exercise their power (in the time and resources available to judges to hear matters) and, as we know, that has been a continuing problem in family law matters at the interim stage as to whether or not the truth is able to be exposed.

There will then be greater emphasis on respondents to domestic violence applications to try and avoid a hearing of those matters and by the same token upon aggrieveds to ensure that so far as possible they have a positive finding of domestic violence in their favour.

The reason this is so is because currently, for technical reasons, family court judges have been reluctant to accept findings made by State magistrates about domestic violence as being binding findings of fact. If, however, after a hearing on an application for a protection order, there has been a finding of fact by a State magistrate, then that may enable an early finding of that fact in the family law litigation, changing the whole scope of that litigation and hopefully saving the survivor a lot of time and money.

The criticism that has been made by lawyers of proceedings under child protection and domestic violence legislation has been that the rules of evidence and procedure in those proceedings has, at times, been so uncertain that it has made it extremely difficult for parties to plan their matter adequately and, at times, has denied parties natural justice.

No doubt, there will be many years of appeals in which parties assert that the way the proceedings were conducted by the particular judge constituted a denial of natural justice.

There is also the ability to use family consultants, i.e. to assist the parties about the impact of orders. It is anticipated that the family consultant would give evidence: Section 69ZU. The family consultant is basically a rebadging of those previously known as mediators or counsellors, primarily based in the Family Court.

Contrary to earlier counselling under the Family Law Act which is deemed to be completely confidential, section 11C provides that evidence of anything said or any admission made by or in the company of a family consultant performing the functions of a family consultant or a person to whom a family consultant refers a person for medical or other professional consultation while the professional is carrying out professional services to the person is admissible in proceedings under the Family Law Act.

Before sending a party to attend family counselling, family dispute resolution or to participate in a particular program (other than arbitration) or attend upon a family consultant or advise or inform a person about family counselling, family dispute resolution or other causes, programs or services, the court may obtain advice from a family consultant (and if the court is a State magistrates court, an appropriately qualified person (whether or not an officer of the court)) as to the services appropriate to the needs of the person and the most appropriate provider of those services and must, before exercising the power, consider seeking that advice: section 11E(1).

If the court seeks that advice it must inform the person in relation to whom the advice is sought :-

Whom the court is seeking advice from; and
The nature of the advice the court is seeking: Section 11E(2).

Parties can be ordered to attend upon a family consultant and if they fail to attend, the consultant must report the failure to the court and the court can make any further orders it considers appropriate: Section 11F.

6 New Costs Power

117AB Costs where false allegation or statement made

(1) This section applies if:

(a) proceedings under this Act are brought before a court; and

(b) the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.

(2) The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings.

The House report stated at [2.123]: “Evidence was provided to the Committee that there is a perception that perjury cases are rarely prosecuted and the contempt and the general cost provision are rarely used.”

At [2.125] – “The Lone Fathers Association recommended that sufficient funding should be provided to make possible a proper prosecution of suspected cases of perjury.”

At [2.126]: “While the Committee agrees that appropriate funding should be provided for investigation of the criminal offence of perjury, it considers an alternative approach may be useful. The Committee considers there is merit in an explicit provision in the Act for the imposition of cost penalties by the court dealing with the family law proceeding where false allegations are knowingly made.”

This section is not limited just to children’s matters and will include property matters. Its message is clear: Make a false allegation or statement in the proceedings and a costs order must be made against you. Given the possibility that the court can make a summary finding at the beginning of a matter, for example about whether or not domestic violence has occurred, one must always have regard to this section.

One could well imagine that perpetrators of domestic violence will seek to invoke this section to intimidate survivors. This section may also be used to strike fear into the hearts of perpetrators and those who fail to disclose the full extent of their property.

As always, it will need resolute, thorough and careful preparation of the case. This section will be used as a sword by vigorous lawyers to attack other parties. I have already put other parties on notice that, in the light of certain independent evidence, their denials of gambling and domestic violence are simply false and that this section will be invoked to obtain a costs order later on.

Until now, proceedings under the Family Law Act have generally worked on the premise that each party bears their own costs: section 117(1) though the court at any time can make an order for costs against a party in appropriate circumstances: section 117(2). Often, in the case where a party has made wilfully false statements, the court has been reluctant to make orders.

7. Changes to Emergency Orders

Under the old Division 11 – Family Violence of Part VII, there is clarification for when orders in relation to children and protection orders conflict – the orders in relation to children are to prevail.

There is also the ability to magistrates in the making of protection orders including :-

Temporary protection orders; and
Temporary variations to protection orders
in the course of the proceedings under domestic violence legislation, such as the Domestic and Family Violence Protection Act to make, revive, vary, discharge or suspend an order which enables the children to spend any time (however described) with the perpetrator.

Example:

A mother and father separated following violence by the father to the mother. Subsequently the mother agreed that their son, John, should live with the father. An order is made in favour of the father for residence and for contact with the mother. On visiting the mother for contact, the son, now aged 9, details a litany of physical and emotional abuse, including being hit repeatedly across the back with a stick by the father. The mother telephones the father to advise him of this. The father, during the course of the call, abuses the mother, including making a threat to kill her. The mother seeks and obtains a temporary protection order in her favour, also naming the son on the protection order and obtains a 21 day order under the Family Law Act suspending the existing order for residence in favour of the father (so the effect of which is that John stays with her until the matter comes to court).

New Section 68R

The whole of Division 11 has been removed and replaced. The key provision is 68R.

68R Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act

Power

(1) In proceedings to make or vary a family violence order, a court of a State or Territory that has jurisdiction in relation to this Part may revive, vary, discharge or suspend:

(a) a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child; or

(b) a recovery order (as defined in section 67Q) or any other order under this Act, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or

(c) an injunction granted under section 68B or 114, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or

(d) to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child:

(i) an undertaking given to, and accepted by, a court exercising jurisdiction under this Act; or

(ii) a registered parenting plan within the meaning of subsection 63C(6); or

(iii) a recognisance entered into under an order under this Act.

(2) The court may do so:

(a) on its own initiative; or

(b) on application by any person.

Limits on power

(3) The court must not do so unless:

(a) it also makes or varies a family violence order in the proceedings (whether or not by interim order); and

(b) if the court proposes to revive, vary, discharge or suspend an order or injunction mentioned in paragraph (1)(a), (b) or

(4) The court must not exercise its power under subsection (1) to discharge an order, injunction or arrangement in proceedings to make an interim family violence order or an interim variation of a family violence order.

Relevant considerations

(5) In exercising its power under subsection (1), the court must:

(a) have regard to the purposes of this Division (stated in section 68N); and

(b) have regard to whether contact with both parents is in the best interests of the child concerned; and

(c) if varying, discharging or suspending an order or injunction mentioned in paragraph (1)(a), (b) or (c) that, when made or granted, was inconsistent with an existing family violence order—be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order or injunction.

Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests.

Registration of revival, variation, discharge or suspension of orders and other arrangements

(6) The regulations may require a copy of the court’s decision to revive, vary, discharge or suspend an order, injunction or arrangement to be registered in accordance with the regulations. Failure to comply with the requirement does not affect the validity of the court’s decision.

Key changes :

No longer can a magistrate make an order under the Family Law Act at the time of making or varying a protection (or equivalent) order. The magistrate can only revive, vary, discharge or suspend an existing order under the Family Law Act.
There is a clarification of what orders are covered (as previously there had to be a reference to another section and it is now easier to read).
There is a requirement that the court has before it material that was not before the court that made the earlier order or injunction. It will be necessary, by some means, to put evidence before the court as to what evidence was before the other court. Usually this will merely be attended to by referring to events that have occurred following the making of the earlier order. The proceedings under the State or Territory legislation insofar as they concern an order under Section 68R are arguably partly proceedings under Part VII of the Family Law Act to which the relaxed evidentiary rules therefore apply: Section 69ZM(2).
Careful regard must be had to Section 68R(5). In particular, having regard to the purposes of the division (stated in Section 68N) and from that (Section 60B), whether contact with both parents is in the best interests of the child concerned and if varying, discharging or suspending an order or injunction that, when made or granted was inconsistent with an existing family violence order – be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed to family violence as a result of the operation of that order or injunction.

68S Application of Act and Rules when exercising section 68R power

(1) The following provisions do not apply to a court exercising the power under section 68R:

(a) section 65C (who may apply for a parenting order);

(b) subsection 65F(2) (parenting order not to be made unless parties attend family counselling);

(d) section 69N (requirement to transfer certain proceedings);

(e) any provisions (for example, section 60CA) that would otherwise make the best interests of the child the paramount consideration;

Note: Even though the best interests of the child are not paramount, they must still be taken into account under paragraph 68R(5)(b).

(f) any provisions of this Act or the applicable Rules of Court specified in the regulations.

(2) If a court is exercising the power under section 68R in proceedings to make an interim family violence order or an interim variation of a family violence order:

(a) the court has a discretion about whether to apply paragraph 60CC(3)(a) (about taking into account a child’s views etc.); and

(b) any provisions of this Act or the applicable Rules of Court specified in the regulations do not apply.

(3) A court exercising the power under section 68R may, as it thinks appropriate, dispense with any otherwise applicable Rules of Court

Comment

Section 68S is similar to the existing Section 68T(3).

Section 68T is equivalent to the existing Section 68T(5).

8. Independent Children’s Lawyer

8.1 Some history

Originally called a separate representative, with the 1995 amendments the jargon changed to “child representative”. Now such a person is to be called an “independent children’s lawyer” which is defined in Section 4(1) as a lawyer who represents the child’s interests in proceedings under an appointment made under a court order under sub-section 68L(2).

The only significant difference about the appointment of an independent legal representative is that in proceedings under the Hague Convention (The Convention on the Civil Aspects of International Child Abduction) there need to be exceptional, specified circumstances before such lawyer is appointed: Section 68L(3).

8.2 Their role

There is now set out in the legislation clear provisions stating the role of the independent children’s lawyer (which was never apparent in the legislation before).

68LA Role of independent children’s lawyer

When section applies

(1) This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act.

General nature of role of independent children’s lawyer

(2) The independent children’s lawyer must:

(a) form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and

(b) act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.

(3) The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

(4) The independent children’s lawyer:

(a) is not the child’s legal representative; and

(b) is not obliged to act on the child’s instructions in relation to the proceedings.

Specific duties of independent children’s lawyer

(5) The independent children’s lawyer must:

(a) act impartially in dealings with the parties to the proceedings; and

(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

(i) analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

(ii) ensure that those matters are properly drawn to the court’s attention; and

(d) endeavour to minimise the trauma to the child associated with the proceedings; and

(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

Disclosure of information

(6) Subject to subsection (7), the independent children’s lawyer:

(a) is not under an obligation to disclose to the court;

(b) cannot be required to disclose to the court;

any information that the child communicates to the independent children’s lawyer.

(7) The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.

(8) Subsection (7) applies even if the disclosure is made against the wishes of the child.

8.3 Comment

What is stated in Section 68LA appears to be the usual practice of the independent children’s lawyer. It remains to be seen whether parties will seize upon this to make complaint against that lawyer or seek their removal, and whether in consent proceedings the independent children’s lawyer always tells the court of significant issues in reports: (4)(c)(ii). My experience is that they do so.

9. Greater Emphasis on Shared Parental Responsibility

9.1 Change of the Objects

There is a new Section 60B in substitution for the old section.

60B Objects of Part and principles underlying it

(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

(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).

(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a) to maintain a connection with that culture; and

(b) to have the support, opportunity and encouragement necessary:

(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii) to develop a positive appreciation of that culture.

9.2 Comment

The object which was in the old s.60B(1) provided :-

“The object of this part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

These provisions are now contained in Section 60B(1)(c) and (d). The new provisions are :-

“Ensuring that children have the benefit of both of their parents having meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

There is now a specific reference in Section 60B(2) to grandparents, something that was missing in the Act.

Section 60B(2)(c) has been changed from “parents’ shared duties and responsibilities” to “parents’ jointly shared duties and responsibilities.”

There was a criticism about the shopping list contained in the previous Section 68F(2) of a list of factors to be taken into account in children’s matters that whilst there was reference to Aboriginal and Torres Strait Islanders, there was not reference to other cultural identities. This has now been rectified in 60B(2)(e) and further developed in 60B(3) for Aboriginal and Torres Strait Islander children.

9.3 Best Interests of the Child

60CA Child’s best interests paramount consideration in making a parenting order

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.

This replaces the old Section 65E which was in similar terms.

9.4 The New Factors to determine the child’s best interests

The old Section 68F(2) has been removed and replaced with Section 60CC.

60CC How a court determines what is in a child’s best interests

Determining child’s best interests

(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2) 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.

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Additional considerations

(3) Additional considerations are:

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

(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, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(j) any family violence involving the child or a member of the child’s family;

(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person;

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m) any other fact or circumstance that the court thinks is relevant.

(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a) has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:

(i) participating in making decisions about major long-term issues in relation to the child; and

(ii) spending time with the child; and

(iii) communicating with the child; and

(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Consent orders

(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

Right to enjoy Aboriginal or Torres Strait Islander culture

(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a) to maintain a connection with that culture; and

(b) to have the support, opportunity and encouragement necessary:

(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii) to develop a positive appreciation of that culture.

Comment

There is a natural conflict between considerations 60CC(2)(a) and (b). There is also seen in the objects in Section 60B(1)(a) and (b). The following considerations under Section 60CC(3) contained within the old Section 68F(2) or equivalent :-

Old Section 68F(2)
Family Law Act 1975 (Cth)
New 60CC(3)
Family Law Amendment (Shared Parenting Responsibility) Act 2006

68F(2)(a) 60CC(3)(a) essentially the same.
68F(2)(b) 60CC(3)(b) similar for each except (ii) is now broader as it previously only referred to “any other child, or other person, with whom he or she has been living.”
68F(2)(c) 60CC(3)(d)
68F(2)(d) 60CC(3)(e)
68F(2)(e) 60CC(3)(f)
68F(2)(f) 60CC(3)(g) and (h)
68F(2)(h) 60CC(3)(i)
68F(2)(i) 60CC(3)(j)
68F(2)(j) 60CC(3)(k)
68F(2)(k) 60CC(3)(l)
68F(2)(l) 60CC(3)(m)

There is now some specific reference to grandparents in (b), (d)(ii), (f)(ii).

There is now more detailed reference to Aboriginal and Torres Strait Islander children.

A new provision is (c) :-

“The willingness and ability of each of the child’s parents to facilitate, and encourage, the close and continuing relationship between the child and the other parent.”

This and (4) will be used by perpetrators of domestic violence to criticise survivors of violence for their failure to facilitate and encourage a close and continuing relationship between the child and that parent.

There is a significant change in 68F(2)(k) as it seems to indicate that if the family violence order is only a temporary or interim one, it is to be ignored. It would also seem to indicate that if the making of the order were contested and there were therefore findings, then that could lead to a positive finding of family violence having occurred.

10. Presumption of Equal Shared Parental Responsibility

61DA Presumption of equal shared parental responsibility when making parenting orders

(1) When making a parenting order in relation to a child, 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.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b) family violence.

(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4) 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.

The key feature about this provision is that it is rebuttable either because of abuse or family violence: (2) or that it is not in the best interests of the child: (4). When the draft Bill came before the House Committee, the Committee reported as to the then Section 61DA at [2.10]:

“Section 61DA of the Draft Bill proposes a new presumption of joint parental responsibility that will be a starting point for the court in making parenting orders except in cases involving family violence or abuse. The presumption will be able to be rebutted where there is evidence of joint parental responsibility is not in the best interests of the child.” (Emphasis added).

At [2.12]: “The Committee does not consider that the exposure draft implements the government’s response to the FCAC in providing a presumption of joint parental responsibility. The Committee is concerned that the term “joint” parental responsibility may be seen by some as different from “equal shared” parental responsibility. The Committee recommends that the term “joint parental responsibility” be replaced with “equal shared parental responsibility” consistent with the recommendation of the FCAC report.”

61DB Application of presumption of equal shared parental responsibility after interim parenting order made

If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.

The House Report at [2.157]:

“The explanatory statement of the exposure draft provides that this is intended to address concerns that a person may obtain an unwarranted advantage in a final hearing by finding made at an interim stage.”

At [2.158] :

“The Family Court of Australia and the Law Council expressed considerable concern with Section 61DB. They suggested that although in contested proceedings the court does not take account of the interim order, the circumstances that led to an interim order may continue to be relevant to a final order which must be made with the paramount consideration being the best interests of the child.”

At [2.159]:

“The Law Council suggested retaining the discretion not to apply the presumption at the interim stage but that the limits of the court’s consideration should be made clear on the face of the legislation. They suggested inclusion of an explicit statement that the court should “disregard the existence of any allocation of parental responsibility in an interim order” and that “….. the court may take into account any facts or circumstances which are relevant to the making of the final parenting order whether those facts or circumstances occurred before or after making the final order.”

In her dissenting report, Nicola Roxon, the then Shadow Attorney-General stated :-

“I am increasingly concerned that the developing concept of shared parenting is being created in a contextual vacuum …. There are also significant risks that the draft Bill would increase, not decrease litigation. Importantly, many changes in the Bill will only be effective, and work fairly if other government plans are fully and properly implemented. I have reservations that these changes may increasingly mean that the resident parent will have their lives totally constrained by the demand for all manner of matters to be consented to by their ex partner, while there is no comparable constraint on the non resident partner. The result is a reform full of rights for non residential parents, but short on responsibilities.

If we take the example of a mother with primary residence of the child, the law gives her no way of requiring more involvement from the father. Yet these changes would give the non resident father the right to demand full consultation (and possibly the right of veto) over where she lives and who she lives with. In trying to address the legitimate interests of those fathers who want more involvement with their children, we may be creating huge problems for those separated families where the father refuses to take more responsibility for the child but wants to continue to exercise ongoing control over the mother’s life.”

and –
“I believe there is substantial risks that the Bill prioritises meaningful relationships with parents over safety of children.”

11. Consideration of equal time

65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

(2) If:

(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and the court must:

(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

(3) For the purposes of subsection (2), 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.

(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a) how far apart the parents live from each other; and

(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d) the impact that an arrangement of that kind would have on the child; and

(e) such other matters as the court considers relevant.

Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:

(a) 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 (paragraph 60CC(3)(c));

(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).

Note 2: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services

Section 4(1) defines “major long-term issues” as:

major long-term issues, in relation to a child, means issues about

the care, welfare and development of the child of a long-term

nature and includes (but is not limited to) issues of that nature

about:

(a) the child’s education (both current and future); and

(b) the child’s religious and cultural upbringing; and

(d) the child’s name; and

(e) changes to the child’s living arrangements that make it

significantly more difficult for the child to spend time with a

parent.

To avoid doubt, a decision by a parent of a child to form a

relationship with a new partner is not, of itself, a major long-term

issue in relation to the child. However, the decision will involve a

major long-term issue if, for example, the relationship with the

new partner involves the parent moving to another area and the

move will make it significantly more difficult for the child to spend time with the other parent.

65DAC Effect of parenting order that provides for shared parental responsibility

(1) This section applies if, under a parenting order:

(a) 2 or more persons are to share parental responsibility for a child; and

(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

(2) The order is taken to require the decision to be made jointly by those persons.

Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see Section 65DAE).

(3) The order is taken to require each of those persons:

(a) to consult the other person in relation to the decision to be made about that issue; and

(b) to make a genuine effort to come to a joint decision about that issue.

(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

The order provides that long-term decisions are to be made jointly. If not made jointly then they will constitute a breach of the order.

65DAE No need to consult on issues that are not major long-term issues

(1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:

(a) has parental responsibility for the child; or

(b) shares parental responsibility for the child with another person;

about decisions that are made in relation to the child during that time on issues that are not major-long term issues.

Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.

(2) Subsection (1) applies subject to any provision to the contrary made by a parenting order

11.1 Comment

As can be seen the concepts of “residence”, “contact” and “specific issues” are now gone. We now talk about the concepts of “substantial and significant time” and “spends time with”. I expect that there will now be a great push by fathers to have equal time, relying on this presumption, even (or especially) in cases involving domestic violence and child abuse. This has started, but we are still in the early days.

I expected in 2006 that it would now be significantly harder for mothers to relocate, given the presumption for equal shared parenting, including the definition of major long-term issues. I do not know, however, if this is how it will work out in practice.

The effect of the provisions is to presume that there is to be a sharing of decisions for major long-term decisions concerning a child. There will then ordinarily be an order for that sharing. That in turn will trip off a consideration of whether there should be a sharing of equal time, or substantial and significant time.

It will probably mean also a push for fathers to have more time other than just every other weekend, and to keep the minutiae in dispute regarding children’s birthdays, parent’s birthdays, Christmas Day and the like.

12. Parenting Plans

There is still the ability to enter into Parenting Plans.

13. Compliance Regime

The old Division 13A dealing with compliance regime in children’s matters has been repealed and replaced with a new regime with four cases:

Allegation of contravention, but no contravention established;
Contravention with a reasonable excuse;
Contravention without a reasonable excuse – less serious;
Contravention without a reasonable excuse – more serious.

The new Division 13A applies only in respect of contraventions on or after 1 July 2006: Section 70NAB.

70NAB Application of Division

Despite anything contained in any other provision of this Division, this Division does not apply in respect of a contravention, committed before this Division commences, of an order under this Act affecting children if a court made an order, in respect of that contravention before this Division commences, under this Act as previously in force.

Where a contravention is alleged but not established, the court may make a costs order against the applicant.

70NCB Costs

(1) The court may make an order that the person who brought the proceedings (the applicant) pay some or all of the costs of another party, or other parties, to the proceedings.

(2) The court must consider making an order under subsection (1) if:

(a) the applicant has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the respondent committed a contravention of the primary order or that other primary order; and

(b) on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:

(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or

(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NBA, 70NDB, 70NDC, 70NEB or 70NFB in relation to the contravention.

If contravention were established but there was a reasonable excuse for contravention an order can be made compensating a person for the time lost: Section 70NDB and an order may be made for costs against the applicant. Section 70NDC.

If there is a less serious contravention established, the provisions of Section 70NEB apply.

70NEB Powers of court

(1) If this Subdivision applies, the court may do any or all of the following:

(a) make an order directing:

(i) the person who committed the current contravention; or

(ii) that person and another specified person;

to attend a post-separation parenting program;

(b) if the current contravention is a contravention of a parenting order in relation to a child—make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;

(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;

(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;

(e) if:

(i) the current contravention is a contravention of a parenting order in relation to a child; and

(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and

(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;

make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);

(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and

(g) if the court makes no other orders in relation to the current contravention—order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.

Note 1: The court may also vary the primary order under Subdivision B.

Note 2: Paragraph (1)(a)—before making an order under this paragraph, the court must consider seeking the advice of a family consultant about the services appropriate to the person’s needs (see section 11E).

(2) The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:

(a) the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and

(b) the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.

(3) If the court makes an order under paragraph (1)(a), the principal executive officer of the court must ensure that the provider of the program concerned is notified of the making of the order.

(4) If:

(a) the current contravention is a contravention of a parenting order in relation to a child; and

(b) the contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);

the court must consider making an order under paragraph (1)(b) to compensate the person for the time the person did not spend with the child (or the time the child did not live with the person) as a result of the contravention.

(5) The court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the court to do so.

(6) In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following:

(a) whether the primary order was made by consent;

(b) whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;

(d) any other matters that the court thinks relevant.

(7) The court must consider making an order under paragraph (1)(g) if:

(a) the person (the applicant) who brought the proceedings in relation to the current contravention has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the person (the respondent) who committed the current contravention committed a contravention of the primary order or that other primary order; and

(b) on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:

(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or

(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NDB, 70NDC, 70NEB, 70NFB or 70NBA in relation to the contravention.

If there is a contravention without reasonable excuse (more serious contravention) then Section 70NFB applies.

70NFB Powers of court

(1) If this Subdivision applies, the court must, in relation to the person who committed the current contravention:

(a) make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and

(b) if the court makes an order under paragraph (2)(g)—consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and

(c) if the court does not make an order under paragraph (2)(g)— make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.

(2) The orders that are available to be made by the court are:

(a) if the court is empowered under section 70NFC to make a community service order—to make such an order; or

(b) to make an order requiring the person to enter into a bond in accordance with section 70NFE; or

(c) if the current contravention is a contravention of a parenting order in relation to a child—to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or

(d) to fine the person not more than 60 penalty units; or

(e) subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or

(f) if:

(i) the current contravention is a contravention of a parenting order in relation to a child; and

(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and

(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;

to make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii); or

(g) to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or

(h) to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.

Note: The court may also vary the primary order under Subdivision B.

(3) If a court varies or discharges under section 70NFD a community service order made under paragraph (2)(a), the court may give any directions as to the effect of the variation or discharge that the court considers appropriate.

(4) The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of a contravention of a child maintenance order made under this Act unless the court is satisfied that the contravention was intentional or fraudulent.

(5) The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of:

(a) a contravention of an administrative assessment of child support made under the Child Support (Assessment) Act 1989; or

(b) a breach of a child support agreement made under that Act; or

(c) a contravention of an order made by a court under Division 4 of Part 7 of that Act for a departure from such an assessment (including such an order that contains matters mentioned in section 141 of that Act).

(6) An order under this section may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event.

(7) When a court makes an order under this section, the court may make any other orders that the court considers necessary to ensure compliance with the order that was contravened.

14. What has really changed?

Some of the changes in administration and in practice have been significant. Before I touch on them I will talk about those areas that have not changed:

Change of name
Areas of practice that have changed

Who you go before
Almost always with new matters the matters will be heard before Federal Magistrates. At least count there were nine Federal Magistrates in Brisbane, two of whom have been appointed in the last couple of weeks. This number will be reduced in reality to eight as one of the Federal Magistrates takes on largely administrative duties.

By contrast there are, in effect, eight Family Court judges in Brisbane, one of whom has been appointed in the last couple of weeks. Of those number, in effect at any one time, approximately two or three maybe four sitting judges as:

(a) Two judges sit permanently on appeals;

(b) One judge has heavy administrative duties;

The method of the trial will be different
There is a much more interventionist approach to trials then there was say a year ago. Ordinarily a year ago Federal Magistrates Court matters were (and still are) legislated to be not greater than two days. As a matter of practice, the Federal Magistrates Court has been dealing with matters up to four days in length. The Family Court by contrast has been trying through its less adversarial programme to reduce the length of trials. The expectation nevertheless is that the more complex matters will end up in the Family Court, but often complex matters are dealt with in the Federal Magistrates Court in a much more summary way than would have occurred in the Family Court.

There is much more emphasis on mediation it seems as though more matters are being mediated at an earlier stage than going to court. This seems to be true of both children’s and property matters but the courts, especially the Federal Magistrates Court, are still extremely busy.
The less adversarial trial is a completely different process to that of most trials. There are still a different regime in the Family Court for children seen to be most at risk whereby some unknown criteria put on a separate Magellan list. The procedure in the Magellan list has certainly changed in the last year with the judge in Brisbane being quite keen to resolve issues and make directions about coming up with agreed facts.
Sharing of time and responsibilities
Some of this arises from the decision in Goode and Goode which I will deal with below but much of it arises from a change in expectations. There appears to be much more emphasis on the rights of the child to have a meaningful relationship with the father and much more concern to ensure that long-term decisions are made jointly.

There does not seem to be an overwhelming number of cases in which there is equal time, but there are certainly cases in the system where dads, who believe they have nothing to lose, seek equal time.

There have certainly been concerns raised that there is less emphasis on naming and dealing with the effects of domestic violence.

Case Examples:

The boy who went to art classes and had done so for several months. The father had little contact with his eight year old son primarily because the father had not been interested. He was interested for the last year. A limited point of contention was whether on the alternate Saturdays the son should continue to go to art classes (which is what the mother wanted) thereby requiring the father to take the son to art classes, or whether he should spend his time with the father without going to art classes each alternate weekend. The Federal Magistrate found that it was more important that the son spend time with the father and not attend at art classes as it would impinge on the father’s time.
In the same case the father had a habit of going to Thailand at Christmas each year for several weeks. The father sought half of the school holidays. The mother opposed that occurring at Christmas because the son would in reality spend three weeks with his paternal grandparents, whom he did not know. They lived five minutes down the road from him but had not bothered to be in contact with him over the years. The Federal Magistrate’s view was: “It’s about time he saw his grandparents” and ordered half school holidays to the father. He then qualified that order by saying that the boy should stay with the grandparents for no greater than fourteen days with them alone, and after that period to come home to mum, as well as being able to speak to mum every couple of days.
A Federal Magistrate rejecting a gradual build-up of time between children and their fathers saying that they should get to know each other and it should occur now so that he can give meaning to the legislation.
A mother and father entered into joint parenting orders including sharing long term parental responsibility. There were great difficulties in communication between the parties. The mother decided to sell her home in Pine Rivers and move to the Sunshine Coast. She had unconditional contracts for the sale of her home and the purchase of the new home. The Federal Magistrate granted an interim injunction preventing the mother from changing the children’s school, meaning that she would have to commute with the children daily.
The mother and father had an arrangement for the care of their four year old son (who had been conceived from a one night stand) – nine nights with the mother and five nights with the father. The father sought to increase the amount of time to equal time and as the alternative, to have the child living with him nine days a fortnight and with the mother five days a fortnight. A family report was obtained which said that given that the parties had no bond of prior relationship, they were doing reasonably well and there should not be any change in the arrangement for the moment. The Federal Magistrate adopted that approach. Now a year after the case was litigated (just after the amendments) the father is seeking to go back to court to have equal time.
It has been put to me by a client that men are punished for paying more child support when they have less time with their children. I said to him that it was more the case that they’d always been made to pay at the top rate but that due to lobbying from men, when men were more involved with their children then there was less child support to be paid so rather than being a punishment it was more a reward for fathers who were involved with their children.

Change of language
The language in the Act has changed. Most clients still talk in the pre-1996 jargon: “guardianship”, “custody” and “access”. Some of the 2006 jargon at times can be quite difficult to say, particularly when one is talking about ‘spend time with and communicate with’ when what is meant is ‘contact’.

How the terms have changed:

Pre 1996 1996 – 2006 2006 –
Guardianship Specific orders Major long term decisions
Custody Resides with Lives with
Access Contact Spends time with & communicates with

15. Impact of Goode and Goode [2006] FamCA 1346

Facts

The parties were married in July 1996, finally separating in May 2006 when the husband left the home.

The mother stated that after some time the parties reached an agreement and the father commenced spending time with the children on each alternate weekend. The father’s case was that the mother removed the children from him and made it very difficult for him to spend time with the children other than that time which the mother said her could have.

The father sought a shared care arrangement.

The mother proposed that the children live with her, have alternate weekend contact with the father and holiday contact, with different proposals for each of the children. The mother asserted that there had been family violence and the father denied it. The judge at first instance hearing the interim application that nothing in the arrangements that had been put in place for the children for two months had indicated they were other than serving the needs of the children to have both parents involved in their lives. The arrangement had worked for the benefit of the children and he was satisfied that the mother had been the person principally concerned for the children when they were sick and had hours of work that were significantly less than the father’s. His Honour noted the matter would come on for hearing moderately quickly and there needed to be some structure which was to be each alternate weekend and some mid-week time with the oldest child as appropriate. The two children named T and J were aged 8 and 2 respectively.

The father appealed.

Old principles of law

Prior to the 2006 amendments, in dealing with an interim custody or interim residence application, the court was, subject to issues of risk and suitability, bound where possible to try and ensure there was stability for the children on an interim hearing until the matter could be heard at a final hearing. This had been the case following the decision in Cilento (1980) and further refined in Cowling (1998).

The father’s appeal was allowed and remitted for a further interim hearing.

The matter came before the Chief Justice Bryant and Justices Finn and Boland, whom I note are all women. The court summarised the amendments to the Family Law Act as having the following affect:

1. Unless the court makes an order changing the statutory conferral of joint parent responsibility, section 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the court or the provisions of a parenting plan made between the parties.

2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence [s 61DA(1) and s 61DA(2)].

3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the court considers it would not be appropriate in the circumstance to apply it. [s 61DA(1) and s 61DA(3)].

4. The presumption may be rebutted where the court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child [s 61DA(4)].

5. When the presumption is applied the first thing the court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to send equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable, the court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents [s 65DAA(1) and (2)].

6. The Act provides guidance as to the meaning of “substantial and significant time” [ss 65DAA(3) and (4)] and as to the meaning of “reasonable practicability” [s 65DAA(5)].

7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

(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 and holidays;

and

(b) the time the child spends with the parent allows the child 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 of events that are of special significance to the parent

8. When neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

9. The child’s best interests are ascertained by consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

10. When the presumption of equal shared parental responsibility is not applied, the court is at large to consider what arrangements will best promote the child’s best interests, including, if the court considers it appropriate, and order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties were seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

11. The child’s best interests remain the overriding consideration.

The court then considered whether the earlier principles in Cowling should be

applied. The court stated:

“In our view some of the comments of the Full Court….. are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process with the scope of the enquiries “significantly curtailed”.

Where the court cannot make findings of fact it should not be drawn into

issues of fact or matters relating to the merits of the substantive case where

findings are not possible. The court also looks to the less contentious matters,

such as the agreed facts and issues not in dispute and would have regard to the

care arrangements prior to separation, the current circumstances of the parties

and their children, and the parties’ respective proposals for the future.

The court went on to say:

“The reasoning in Cowling, particularly [as to] the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility ( s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.

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 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. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child

That is not to say the stability derived from a well settled arrangement may not ultimately be what the court finds to be in the child’s best interests, particularly when there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m), and if appropriate, s 60CC(4) and s 60CC(4A).

We also acknowledge that, because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief. So too, the filing of lengthy affidavits is unlikely to be helpful where the court is unable to make findings about disputed facts.”

The approach to take at interim proceedings

The court went on to say:

“In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

In an interim case that would involve the following:

(a) Identifying the competing proposals of the parties;

(b) Identifying the issues in dispute in the interim hearing;

(d) Considering the matters in s 60CC that are relevant and, if

possible, making finds about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

(e) Deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;

(f) If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

(g) If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more on the matters in s 60CC or impracticable;

(h) If equal time is found not to be in the child’s best interests, considering make an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(i) If neither equal time nor substantial and significant time is considered to be in the best interest of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the factors in s 60CC;

(j) If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

(k) Even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it is to be in the best interests of the child.”

How the court treated family violence

The initial judge noted that as Cowling and other cases concerning interim applications have made clear, it is not possible in the circumstances of such a case as Goode to say that he was able to accept the assertions for either party. The judge noted that the allegations that each made against the other were untested. He noted that, in so far as domestic violence was concerned, there were allegations but he was not able to rely upon them to constitute a rebuttal of the presumption of equal shared parental responsibility because he could not be satisfied on reasonable grounds that such a situation had occurred. His Honour then turned to s 61DA(3):

“When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.”

His Honour noted that there was a dispute about whether there had been any action or activity on behalf of the father that would constitute family violence, which if ultimately found on reasonable grounds to be family violence within the definition of the Act would rebut the presumption of equal shared parental responsibility. Being unable to make such a finding, his Honour determined that in the circumstances of the case he should rely on s 61DA(3) and find that it was not appropriate to apply the resumption in making the order. Thus his Honour did not consider the matters in s 65DAA that would otherwise follow from application of the presumption of equal shared parental responsibility.

Their Honours went on to say:

“His Honour found that as a result of allegations about family violence, which he was unable to make positive findings about as a result of the evidence being untested, it would be inappropriate to apply the presumption. In our view his Honour correctly applied the structure of s 61DA and was not in error in his approach.”

Their Honours went on to say:

“It is clear that the parties were not agitating before His Honour anything other than the quantum of time the appellant father should spend with the children” … and it was not a matter in which there was any allegation of risk.

The mother stated in her affidavit:

“That she was subjected to physical abuse by the appellant father after the first few months of marriage. She asserted that on one occasion when she was pregnant he pushed her onto the floor and on another occasion between 1997 and 1999 the appellant father pushed her and then slapped her with an open hand. She asserted that in about 1999 the appellant father’s mother hit her on the back. She further asserted that in January 2006 she and the appellant father had an argument in which she was physically abused and thrown around the bedroom. This incident, she asserted, was sufficiently serious that she could not attend work the next day. She alleged there were numerous other examples of violence during the marriage. The appellant father had not had an opportunity to respond to the respondent mother’s allegations. However, the solicitor for the respondent mother conceded that they were denied……………In considering whether the presumption applied His Honour identified the allegations of family violence made by the respondent mother. Whilst His Honour did not expand upon the nature of the allegations, we observed that the definition of “family violence” in s 4(1) of the Act is a broad definition and would undoubtedly encompass the conduct complained of by the respondent mother. His Honour recognised this but said ……..”there are no more allegations in so far as domestic violence is concerned, family violence is concerned, to use the wording of the section, and therefore I am not able to rely upon them to constitute a rebuttal of the presumption for equal shared parental responsibility. The section talks about being satisfied on reasonable grounds to believe that such a situation occurs.

His Honour then went on to postulate that s61DA(3) may have been inserted for this very purposes; namely that where there was a dispute about whether or not there had been family violence but where no finding could be made, s 61DA(3) enabled him to determine in interim proceedings that it would not be appropriate to apply the presumption.

We observed that His Honour did not give any consideration or weight to the surrounding circumstances; only that it was conceded that there was no risk to the children and that both parties were seeking an order which would involve them in joint and several parental responsibilities. Although considering those facts we might come to a different conclusion, give the wide discretion invested in the court to make orders in the best interests of the children, we do not consider that His Honour erred ……………..”

16. Cases since Goode and Goode

Goode and Goode (No. 2) [2007] FamCA 315

Orders were made which substantially maintained the existing circumstances.

As to the issue of family violence, Justice Ryan stated:

“Both parties raised issues concerning family violence. From the outset the mother described a marital relationship marred by episodic family violence. The mother does not assert that her evidence concerning family violence is relevant to the amount of time the children should spend with their father or the conditions under which he should see them. Its relevance appears to lie in the application of the equal shared parental responsibility presumption and to shed some insight into the parties post separation relationships. The father denies the mother’s family violence allegations. In his affidavit …… the father alleges that during cohabitation the mother was violent to him. He explains his failure to mention family violence in his earlier affidavits on his belief that the mother’s violence is not relevant to the amount of time she should have with the children or any other parenting issue. The mother denies the father’s domestic violence allegations. I am unable to come to any conclusion concerning the veracity of the parties’ allegations concerning family violence or their denial. Adjudication of this issue, if it remains an issue, must await a final hearing.

There are no allegations of family violence post-separation. It appears that whatever the situation was during co-habitation, on both parties’ evidence, separation has brought an end to family violence. This is in the context of frequent contact between the parties. In these circumstances I am satisfied that while the parties are separated there are no protection s 60CC(b) issues which the court must consider.”

As to the sharing of joint parental responsibility Her Honour said:

“From the children’s perspective, I can only see good will come from their parents jointly exercising parental responsibility. In this case I do not see any obvious detriments flowing from an interim equal shared parental responsibility order. By s 65DAA such an order requires that I consider were the ordering that the children divide their time equally between their parents is in the children’s best interests. Consider means “a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a) being the best interests of the child, and s 65DAA(1)(b) reasonable practicability, are met”…I have made findings concerning the children’s need to maintain stability and continuity of care at this time and to avoid making changes the effects of which are uncertain. In my view, the father’s approach is contra-indicated by the potential disorganisation his proposal will bring to the children’s lives during school terms. I do not consider for the reasons I have earlier given that his approach is consistent that the children’s best interests at this time. Clearly, having regard to my earlier findings, an equal time arrangement is reasonably practicable and if I was satisfied such an outcome was in the children’s best interests it could be implemented without undue inconvenience to either party.”

M and S [2006] FamCA 1408

This was a relocation case in which Justice Dessau adopted the words in Goode and Goode:

“It can fairly be said that 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 children…..”

Feeney and Wilkinson [2007] FamCA372

Fauks DCJ in following Goode and Goode stated on an appeal from a Federal Magistrate:

“His Honour (as appears from subsequent proceedings before him in relation to the stay application by the mother) perhaps correctly identifies that the proscriptive nature of the legislation…….is not always helpful in circumstances where interim determinations are undertaken in busy duty lists by litigants who have perhaps not many issues in dispute between them. Nevertheless, if this is so, it is a problem with the legislation itself and it does not enable the trial judge to disregard the legislation simply because it is inconvenient or even overly prosceriptive. In my opinion their Honours in Goode have set out authoritatively and clearly the process that must be undertaken to comply with the legislation as it is currently drafted and while this imposes delay and completes the interim proceedings, the resolution of this is a matter for the legislature.”

Truman and Truman [2007] FamCA 435

Justice Rowe was concerned not to impose a new set of living arrangements on the children when the mother had unilaterally changed living arrangements post-separation because whatever criticism might be made of the mother, for the children their living arrangements had changed and this impacted upon them.

R and R [2007] FMCA fam 29

Dealing with the definition of “family violence” in section 4 of the Act, the Federal Magistrate stated:

“This definition now includes an objective level. Fear or apprehension of violence must be reasonable. It is of course not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents which have previously occurred. At this stage I am simply unable to ascertain the truth or otherwise the mother’s assertions, which if true, in my view, potentially pose very serious threats to the children concerned.

Allegations of family violence are easy to make; may be very difficult to refute; and indeed may be difficult to prove definitively. This is because family violence, more often that not, arises in the private confines of the family home and, its victims may evoke emotions such as embarrassment, shame, disempowerment and fear, which render its reporting to appropriate authorities difficult and accordingly may make independent verification of it problematic. Clearly, these difficulties are compounded at the interim stage.

As a result, the court must exercise caution in both to readily accepting such allegations, and on the other hand, to readily dismissing them because of a lack of corroborating evidence. It is now, I think, generally accepted that family violence is prevalent in all social settings and walks of life. In my view, it was for reasons of this kind that the legislature saw fit to insert section 61 DA(3) into the legislation.”

SL and JS & Anor [2007] FMCA Fam 537

These were proceedings concerning a five year old girl. Both parties lived on the Sunshine Coast. The mother arrived in Australia from former French Carribean Colony of Martinique in 1999. She spoke little or no English. She was aged 13. By age 16 she was pregnant and became the child’s mother. Aged 17, she tried to drown the infant aged 7 months.

Quite properly this said that the court ought to examine this incident in the context of the need to protect the child. The mother also did not report, or otherwise deal with, a number of incidents of actual or possible abuse of the child during the child’s first three years, and that issue must also be considered.

The court is of the view that the “drowning incident”, as it came to be described, and other abuse incidents referred to above, do not give present rise to a concern about the need to protect the child.

“This is because:

(a) The drowning incident occurred more than four years ago and has not been repeated.

(b) The mother was only seventeen at the time of the drowning incident.

(i) before the mother turned 20; and

(ii) Principally in circumstances where the evidence indicates that the mother was in a relationship where the father exercised a significant degree of control; and

(d) The family report writer says that the drowning incident is historical, and unlikely to recur, and further that it is a typical.

The father’s conduct is also such, it is submitted, to be of concern in relation to the

need to protect the child.

The father has:

(a) a drug addiction, using marijuana daily;

(b) an alcohol abuse problem which periodically manifests itself;

(d) a propensity, perhaps, but again not necessarily, because of (a) and (b) as well as (c) to act improperly, and thus:

(i) to drive dangerously under the influence of drugs and / or alcohol or simply because he is upset about something; and

(ii) to act violently, as for example, when he smashed up (or trashed, to use the vernacular) his room at his parent’s house.

Of concern in this context is the evidence of the family report writer that the father’s

emotional volatility is not likely to diminish, and may come to impact on the child by

the father’s emotionally volatile decision making process. Further, the father has not

sought out professional assistance for the problems with his temperament, and has

actively shunned any possible assistance of this type. He prefers to self medicate,

mostly with marihuana.

It is nevertheless the case that the evidence indicates that:

(a) the father has been the child’s primary carer, at least in the last two years;

(b) the child has not been exposed to abuse or neglect, nor seemingly suffered any ill effects, whilst living with the father;

(c) the child has developed into a bright and delightful 5 year old under the care of the father, with some assistance from the father’s parents ………..

There is certainly no need to protect the child from the mother, or on the available

evidence the parents of both mother and father. That leaves the father. The court has

considered all of the evidence, and summarised the essence of it above. Anxiously,

and not without a complete absence of doubt, the court has come to the conclusion

that the child is not in need of protection from the father. Whatever the father’s

personal demons and disposition he has managed to distance them from the care and

protection of the child, so that the child has suffered no consequent ill effects. In an

effort to ensure that that situation continues, the court will make an order prohibiting

the parties being under the influence of drugs and alcohol when the child spends time

with them. That might require some behaviour modification on the father’s part, and

it will be up to him to seek such assistance, professional or otherwise, as is necessary

to deal with any issue arising therefrom.”

In dealing with the willingness and ability of each of the parents to facilitate and

encourage a close and continuing relationship between the child and the other parent,

His Honour said:

“The evidence is that the mother will have no difficulty facilitating a close and continuing relationship between the child and the father.

The father however may have a difficulty. The father clearly has a controlling disposition. The father did not have anything noticeably positive to say about the mother. Indeed, the contrary was the case, the father saying of the mother that she was ‘not much of a parent’. It is evident from the family report that the child has become aware of the dislike of the father for the mother. However, it does not appear to have resulted in any alienation of the child from the mother. Perhaps surprisingly, given that the child presently lives with the father and the father’s criticisms of the mother of which the child appears cognoscente, the child in fact appears to be enjoying the greater amount of time spent presently with the mother.

The court is not persuaded that an order that the child spend greater than equal time with the mother, will, of itself, overcome the issue of the father’s failure to facilitate a close and continuing mother / child relationship, or that ongoing criticism by the father will necessary affect the child, especially if the child spends more time with the mother than he does presently. It might be that the more appropriate course is to provide for the assistance of a family consultant, a non-denigration order, and such order as to time spent as is appropriate (assuming presently that such order will give the mother more time spent than she presently has, but not, in any event greater than equal time).”

Ultimately the court was of the view that in light of all matters and the underlying

presumption in favour of equal time, the court has concluded that the child should

spend equal time with each parent and live with each parent week about. His Honour

said:

“The court is not persuaded that the child should spend a period of time exclusively with the mother at the commencement of any orders (the so-called safety valve option). Provision for a family consultant should suffice. Further, the father will be well aware, and no doubt advised, of the possible consequences of any future foolish behaviour by him.”

There were numerous other cases, most of which merely applied Goode and Goode. As with 1976, the law is in a state of great change.

We shall wait and see what develops.

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