FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY) BILL 2005

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 ii

Contents

1 Short

title ...........................................................................................1

2 Commencement.................................................................................1

3 Schedule(s) ........................................................................................3

Schedule 1--Shared parental responsibility

Part 1--Amendments

Family Law Act 1975

Part 2--Application of amendments

Schedule 2--Compliance regime

Part 1--Amendments

Family Law Act 1975

Part 2--Application of amendments and savings

Schedule 3--Amendments relating to the conduct of

child-related proceedings

Part 1--Amendments

Evidence Act 1995

Family Law Act 1975

Part 2--Application of amendments

Schedule 4--Changes to dispute resolution

Part 1--Changes to approval of organisations

Family Law Act 1975

Part 2--Protection of names

Family Law Act 1975

Part 3--Changes to dispute resolution

Family Law Act 1975

Federal Magistrates Act 1999

110

Marriage Act 1961

116

Part 4--Transitional matters relating to family counselling and

family dispute resolution

117

iii Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Part 5--Application and transitional provisions relating to

other changes to dispute resolution

123

Schedule 5--Representation of child's interests by independent

children's lawyer

127

Part 1--Amendments

127

Family Law Act 1975

127

Part 2--Application of amendments and saving of

appointments

133

Schedule 6--Family violence

134

Part 1--Amendments

134

Family Law Act 1975

134

Part 2--Application of amendments and savings

141

Schedule 7--Jurisdiction of courts

142

Part 1--Amendment

142

Family Law Act 1975

142

Part 2--Application of amendment

143

Schedule 8--Removal of references to residence and contact

144

Part 1--Amendments

144

Australian Citizenship Act 1948

144

Australian Citizenship Act 2005

144

Australian Passports Act 2005

144

Child Support (Assessment) Act 1989

145

Family Law Act 1975

149

Migration Act 1958

163

Part 2--Savings

164

Schedule 9--Relocation of defined terms used in Part VII

165

Part 1--Amendments

165

A New Tax System (Family Assistance) Act 1999

165

Australian Passports Act 2005

165

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 1

A Bill for an Act to amend the Family Law Act

1975, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Family Law Amendment (Shared

Parental Responsibility) Act 2005.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedules 1

and 2

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

3. Schedule 3

1 July 2006.

1 July 2006

4. Schedule 4,

items 1 to 8

The day on which this Act receives the

Royal Assent.

5. Schedule 4,

items 9 to 139

At the same time as the provision(s) covered

by table item 2.

6. Schedules 5 to

At the same time as the provision(s) covered

by table item 2.

7. Schedule 8,

item 1

At the same time as the provision(s) covered

by table item 2.

However, if section 6 of the Australian

Citizenship Act 2005 commences before that

time, the provision does not commence at

all.

8. Schedule 8,

item 2

The later of:

(a) the time that the provision(s) covered by

table item 2 commence; and

(b) immediately after section 6 of the

Australian Citizenship Act 2005

commences.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

9. Schedule 8,

items 3 to 104

At the same time as the provision(s) covered

by table item 2.

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 3

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement Date/Details

10. Schedule 9

At the same time as the provision(s) covered

by table item 2.

Note:

This table relates only to the provisions of this Act as originally

passed by the Parliament and assented to. It will not be expanded to

deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Schedule 1 Shared parental responsibility

Part 1 Amendments

4 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Schedule 1--Shared parental responsibility

Part 1--Amendments

Family Law Act 1975

1 Subsection 4(1)

Insert:

Aboriginal child means a child who is a descendant of the

Aboriginal people of Australia.

2 Subsection 4(1)

Insert:

Aboriginal or Torres Strait Islander culture in relation to a child:

(a) means the culture of the Aboriginal or Torres Strait Islander

community or communities to which the child belongs; and

(b) includes Aboriginal or Torres Strait Islander lifestyle and

traditions of that community or communities.

3 Subsection 4(1)

Insert:

family violence means conduct, whether actual or threatened, by a

person towards, or towards the property of, a member of the

person's family that causes that or any other member of the

person's family reasonably to fear for, or reasonably to be

apprehensive about, his or her personal wellbeing or safety.

4 Subsection 4(1)

Insert:

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

Shared parental responsibility Schedule 1

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 5

(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.

Note:

Paragraph (e)--a decision by a parent of the child to form a

relationship with a new partner will not, of itself, involve a major

long-term issue in relation to the child. 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.

5 Subsection 4(1)

Insert:

relative of a child:

(a) in Part VII, means:

(i) a step-parent of the child; or

(ii) a brother, sister, half-brother, half-sister, step-brother or

step-sister of the child; or

(iii) a grandparent of the child; or

(iv) an uncle or aunt of the child; or

(v) a nephew or niece of the child; or

(vi) a cousin of the child; and

(b) in subsection (1AB), has the meaning given by

subsection (1AC).

6 Subsection 4(1)

Insert:

Torres Strait Islander child means a child who is a descendant of

the Indigenous inhabitants of the Torres Strait Islands.

7 At the end of section 4

Add:

(4) A reference in this Act to a person who has parental responsibility

for a child is a reference to a person who:

(a) has some or all of that responsibility solely; or

(b) shares some or all of that responsibility with another person.

Schedule 1 Shared parental responsibility

Part 1 Amendments

6 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(5) A reference in this Act to a person who shares parental

responsibility for a child with another person is a reference to a

person who shares some or all of the parental responsibility for the

child with that other person.

8 Section 60B

Repeal the section, substitute:

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

to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their

responsibilities, concerning the care, welfare and

development of their children.

(2) The principles underlying these objects are that (except when it is

or would be contrary to a child's best interests):

(a) children have the right to know and be cared for by both their

parents, regardless of whether their parents are married,

separated, have never married or have never lived together;

and

(b) children have a right to spend time on a regular basis with,

and communicate on a regular basis with, both their parents

and other people significant to their care, welfare and

development (such as grandparents and other relatives); and

the care, welfare and development of their children; and

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

children; and

Shared parental responsibility Schedule 1

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 7

(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 After Subdivision B of Division 1 of Part VII

Insert:

Subdivision BA--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.

60CB Proceedings to which Subdivision applies

(1) This Subdivision applies to any proceedings under this Part in

which the best interests of a child are the paramount consideration.

Note:

Division 10 also allows a court to make an order for a child's interests

to be independently represented by a lawyer in proceedings under this

Part in which the best interests of a child are the paramount

consideration.

(2) This Subdivision also applies to proceedings, in relation to a child,

to which subsection 60G(2), 63F(2) or 63F(6) or section 68R

applies.

Schedule 1 Shared parental responsibility

Part 1 Amendments

8 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

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);

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;

Shared parental responsibility Schedule 1

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 9

(e) the practical difficulty and expense of a child having contact

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:

Schedule 1 Shared parental responsibility

Part 1 Amendments

10 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(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

maintain the child.

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.

60CD How the views of a child are expressed

(1) Paragraph 60CC(3)(a) requires the court to consider any views

expressed by a child in deciding whether to make a particular

parenting order in relation to the child. This section deals with how

the court informs itself of views expressed by a child.

(2) The court may inform itself of views expressed by a child:

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 11

(a) by having regard to anything contained in a report given to

the court under subsection 62G(2); or

(b) by making an order under section 68L for the child's interests

in the proceedings to be independently represented by a

lawyer; or

as the court thinks appropriate.

Note 1:

Paragraph (a)--subsection 62G(3A) generally requires the person

giving the report to ascertain the child's views and include those

views in the report.

Note 2:

Paragraph (b)--paragraph 68LA(5)(b) requires the independent

children's lawyer for the child to inform the court of the child's views.

60CE Children not required to express views

Nothing in this Part permits the court or any person to require the

child to express his or her views in relation to any matter.

60CF Informing court of relevant family violence orders

(1) If a party to the proceedings is aware that a family violence order

applies to the child, or a member of the child's family, that party

must inform the court of the family violence order.

(2) If a person who is not a party to the proceedings is aware that a

family violence order applies to the child, or a member of the

child's family, that person may inform the court of the family

violence order.

(3) Failure to inform the court of the family violence order does not

affect the validity of any order made by the court.

60CG Court to consider risk of family violence

(1) In considering what order to make, the court must, to the extent

that it is possible to do so consistently with the child's best

interests being the paramount consideration, ensure that the order:

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

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

violence.

Schedule 1 Shared parental responsibility

Part 1 Amendments

12 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(2) For the purposes of paragraph (1)(b), the court may include in the

order any safeguards that it considers necessary for the safety of

those affected by the order.

10 Subsection 60G(2) (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

11 At the end of Division 1 of Part VII

Add:

Subdivision E--Family dispute resolution

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.

(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.

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 13

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;

(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;

Schedule 1 Shared parental responsibility

Part 1 Amendments

14 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

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

Shared parental responsibility Schedule 1

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 15

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

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.

Schedule 1 Shared parental responsibility

Part 1 Amendments

16 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

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

Shared parental responsibility Schedule 1

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Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 17

dispute resolution practitioner in order to obtain information about

those matters.

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

(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.

The document referred to in paragraph (b) may be the application

itself or another document.

(2) As soon as practicable after the document is filed, and in any event

within 8 weeks after the document is filed, the court must:

(a) consider what 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.

(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.

Schedule 1 Shared parental responsibility

Part 1 Amendments

18 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(4) Without limiting paragraph (2)(a)(ii), the court must consider

whether orders should be made, or an injunction granted, under

section 68B.

12 At the end of subsection 61C(1)

Add:

Note 1:

This section states the legal position that prevails in relation to

parental responsibility to the extent to which it is not displaced by a

parenting order made by the court. See subsection (3) of this section

and subsection 61D(2) for the effect of a parenting order.

Note 2:

This section does not establish a presumption to be applied by the

court when making a parenting order. See section 61DA for the

presumption that the court does apply when making a parenting order.

Note 3:

Under section 63C, the parents of a child may make a parenting plan

that deals with the allocation of parental responsibility for the child.

13 After section 61D

Insert:

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

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 19

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.

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.

14 At the end of Division 2 of Part VII

Add:

61F Application to Aboriginal or Torres Strait Islander children

In:

(a) applying this Part to the circumstances of an Aboriginal or

Torres Strait Islander child; or

(b) identifying a person or persons who have exercised, or who

may exercise, parental responsibility for such a child;

the court must have regard to any kinship obligations, and

child-rearing practices, of the child's Aboriginal or Torres Strait

Islander culture.

15 After subsection 62G(3)

Insert:

(3A) A family consultant who is directed to give the court a report on a

matter under subsection (2) must:

(a) ascertain the views of the child in relation to that matter; and

(b) include the views of the child on that matter in the report.

Note:

A person cannot require a child to express his or her views in relation

to any matter (see section 60CE).

Schedule 1 Shared parental responsibility

Part 1 Amendments

20 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(3B) Subsection (3A) does not apply if complying with that subsection

would be inappropriate because of:

(a) the child's age or maturity; or

(b) some other special circumstance.

16 After paragraph 63C(1)(b)

Insert:

(ba) is signed by the parents of the child; and

(bb) is dated; and

17 Subsection 63C(2)

Repeal the subsection, substitute:

(2) A parenting plan may deal with one or more of the following:

(a) the person or persons with whom a child is to live;

(b) the time a child is to spend with another person or other

persons;

(d) if 2 or more persons are to share parental responsibility for a

child--the form of consultations those persons are to have

with one another about decisions to be made in the exercise

of that responsibility;

(e) the communication a child is to have with another person or

other persons;

(f) maintenance of a child;

(g) the process to be used for resolving disputes about the terms

or operation of the plan;

(h) the process to be used for changing the plan to take account

of the changing needs or circumstances of the child or the

parties to the plan;

(i) any aspect of the care, welfare or development of the child or

any other aspect of parental responsibility for a child.

Note: Paragraph

(f)--if

the

Child Support (Assessment) Act 1989 applies,

provisions in a parenting plan dealing with the maintenance of a child

(as distinct from child support under that Act) are unenforceable and

of no effect unless the provisions in the plan are a child support

agreement (see section 63CAA and subsection 63G(5) of this Act).

(2A) The person referred to in subsection (2) may be, or the persons

referred to in that subsection may include, either a parent of the

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 21

child or a person other than the parent of the child (including a

grandparent or other relative of the child).

(2B) Without limiting paragraph (2)(c), the plan may deal with the

allocation of responsibility for making decisions about major

long-term issues in relation to the child.

(2C) The communication referred to in paragraph (2)(e) includes (but is

not limited to) communication by:

(a)

letter;

and

(b) telephone, email or any other electronic means.

18 Section 63DA

Repeal the section, substitute:

63DA Obligations of advisers

(1) If an adviser gives advice or assistance to people in relation to

parental responsibility for a child following the breakdown of the

relationship between those people, the adviser must:

(a) inform them that they could consider entering into a

parenting plan in relation to the child; and

(b) inform them about where they can get further assistance to

develop a parenting plan and the content of the plan.

(2) If an adviser gives advice to people in connection with the making

by those people of a parenting plan in relation to a child, the

adviser must:

(a) inform them that, if the child spending equal time with each

of them is:

(i) reasonably practicable; and

(ii) in the best interests of the child;

they could consider the option of an arrangement of that

kind; and

(b) inform them that, if the child spending equal time with each

of them is not reasonably practicable or is not in the best

interests of the child but the child spending substantial and

significant time with each of them is:

(i) reasonably practicable; and

(ii) in the best interests of the child;

Schedule 1 Shared parental responsibility

Part 1 Amendments

22 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

they could consider the option of an arrangement of that

kind; and

plans should be made in the best interests of the child; and

(d) inform them of the matters that may be dealt with in a

parenting plan in accordance with subsection 63C(2); and

(e) inform them that, if there is a parenting order in force in

relation to the child, the order may (because of section 64D)

include a provision that the order is subject to a parenting

plan they enter into; and

(f) inform them about the desirability of including in the plan:

(i) if they are to share parental responsibility for the child

under the plan--provisions of the kind referred to in

paragraph 63C(2)(d) (which deals with the form of

consultations between the parties to the plan) as a way

of avoiding future conflicts over, or misunderstandings

about, the matters covered by that paragraph; and

(ii) provisions of the kind referred to in paragraph

63C(2)(g) (which deals with the process for resolving

disputes between the parties to the plan); and

(iii) provisions of the kind referred to in paragraph

63C(2)(h) (which deals with the process for changing

the plan to take account of the changing needs or

circumstances of the child or the parties to the plan);

and

(g) explain to them, in language they are likely to readily

understand, the availability of programs to help people who

experience difficulties in complying with a parenting plan;

and

(h) inform them that section 65DAB requires the court to have

regard to the terms of the most recent parenting plan in

relation to the child when making a parenting order in

relation to the child if it is in the best interests of the child to

do so.

Note:

Paragraphs (a) and (b) only require the adviser to inform the people

that they could consider the option of the child spending equal time, or

substantial and significant time, with each of them. The adviser may,

but is not obliged to, advise them as to whether that option would be

appropriate in their particular circumstances.

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 23

(3) For the purposes of paragraph (2)(b), a child will be taken to spend

substantial and significant time with a parent only if:

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

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

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

(b) the time the child spends with the parent allows the parent to

be involved in:

(i) the child's daily routine; and

(ii) occasions and events that are of particular significance

to the child; and

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 regard may

be had in determining whether the time a child spends with a

parent would be substantial and significant.

(5) In this section:

adviser means a person who is:

(a) a legal practitioner; or

(b) a family counsellor; or

(d) a family consultant.

19 Paragraph 63E(3)(b)

Omit "subsection 68F(2)", substitute "subsections 60CC(2) and (3)".

20 Subsection 63F(6) (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

21 Subsection 63H(2) (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

22 Subsections 64B(2) to (4)

Repeal the subsections, substitute:

(2) A parenting order may deal with one or more of the following:

(a) the person or persons with whom a child is to live;

Schedule 1 Shared parental responsibility

Part 1 Amendments

24 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(b) the time a child is to spend with another person or other

persons;

(d) if 2 or more persons are to share parental responsibility for a

child--the form of consultations those persons are to have

with one another about decisions to be made in the exercise

of that responsibility;

(e) the communication a child is to have with another person or

other persons;

(f) maintenance of a child;

(g) the steps to be taken before an application is made to a court

for a variation of the order to take account of the changing

needs or circumstances of:

(i) a child to whom the order relates; or

(ii) the parties to the proceedings in which the order is

made;

(h) the process to be used for resolving disputes about the terms

or operation of the order;

(i) any aspect of the care, welfare or development of the child or

any other aspect of parental responsibility for a child.

The person referred to in this subsection may be, or the persons

referred to in this subsection may include, either a parent of the

child or a person other than the parent of the child (including a

grandparent or other relative of the child).

Note:

Paragraph (f)--a parenting order cannot deal with the maintenance of

a child if the Child Support (Assessment) Act 1989 applies.

(3) Without limiting paragraph (2)(c), the order may deal with the

allocation of responsibility for making decisions about major

long-term issues in relation to the child.

(4) The communication referred to in paragraph (2)(e) includes (but is

not limited to) communication by:

(a)

letter;

and

(b) telephone, email or any other electronic means.

(4A) Without limiting paragraphs (2)(g) and (h), the parenting order

may provide that the parties to the proceedings must consult with a

family dispute resolution practitioner to assist with:

(a) resolving any dispute about the terms or operation of the

order; or

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 25

(b) reaching agreement about changes to be made to the order.

23 Subsection 64B(5)

Omit "(c)", substitute "(f)".

24 Subsections 64B(6) to (8)

Repeal the subsections, substitute:

(6) For the purposes of this Act:

(a) a parenting order that provides that a child is to live with a

person is made in favour of that person; and

(b) a parenting order that provides that a child is to spend time

with a person is made in favour of that person; and

communication with a person is made in favour of that

person; and

(d) a parenting order that:

(i) allocates parental responsibility for a child to a person;

(ii) provides that a person is to share parental responsibility

for a child with another person;

made in favour of that person.

25 At the end of Division 5 of Part VII

Add:

64D Parenting orders subject to later parenting plans

(1) Subject to subsection (2), a parenting order in relation to a child is

taken to include a provision that the order is subject to a parenting

plan that is:

(a) entered into subsequently by the child's parents; and

(b) agreed to, in writing, by any other person (other than the

child) to whom the parenting order applies.

(2) The court may, in exceptional circumstances, include in a

parenting order a provision that the parenting order, or a specified

provision of the parenting order, may only be varied by a

subsequent order of the court (and not by a parenting plan).

Schedule 1 Shared parental responsibility

Part 1 Amendments

26 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

26 Section 65A

Before "This", insert "(1)".

27 At the end of section 65A

Add:

Note:

Paragraph (a)--section 60I provides that people with disputes about

matters that may be dealt with in a Part VII order (which includes a

parenting order) should generally make use of family dispute

resolution before applying for the order.

(2) Measures designed to improve communication between separated

parents and to educate parents about their respective

responsibilities in relation to their children are contained in this

Division (see section 65DA).

Note:

Division 13A provides for the compliance regime for dealing with

contraventions, and alleged contraventions, of parenting orders.

28 Section 65AA

Repeal the section, substitute:

65AA Child's best interests paramount consideration in making a

parenting order

Section 60CA provides that 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.

29 Subsection 65D(1)

After "subject to", insert "sections 61DA (presumption of equal shared

parental responsibility when making parenting orders) and 65DAB

(parenting plans) and".

30 Subsection 65D(2)

After "subject to", insert "section 61DA (presumption of equal shared

parental responsibility when making parenting orders) and 65DAB

(parenting plans) and".

31 After section 65D

Insert:

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 27

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

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:

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

Schedule 1 Shared parental responsibility

Part 1 Amendments

28 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(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

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

each other and resolve difficulties that might arise in

implementing an arrangement of that kind; and

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 29

(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.

65DAB Court to have regard to parenting plans

When making a parenting order in relation to a child, the court is to

have regard to the terms of the most recent parenting plan (if any)

that has been entered into between the child's parents (to the extent

to which that plan relates to the child) if doing so would be in the

best interests of the child.

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).

Schedule 1 Shared parental responsibility

Part 1 Amendments

30 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

(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.

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.

32 Section 65E

Repeal the section.

33 Paragraph 65G(2)(a)

Repeal the paragraph, substitute:

(a) the parties to the proceedings have attended a conference

with a family consultant to discuss the matter to be

determined by the proposed order; or

34 Subsection 65L(2) (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

Shared parental responsibility Schedule 1

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 31

35 Subsection 65LA(2) (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

36 Section 67L (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

37 Section 67V (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

38 Subsection 67ZC(2) (note)

Omit "Division 10 deals", substitute "Sections 60CB to 60CG deal".

39 Subsection 69ZH(2)

After "subsection,", insert "Subdivision BA of Division 1,".

40 Subsection 117(1)

After "sections 117AA", insert ", 117AB".

41 After section 117AA

Insert:

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.

Schedule 1 Shared parental responsibility

Part 2 Application of amendments

32 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Part 2--Application of amendments

42 Definitions

In this Part:

commencement means the commencement of this Schedule.

new Act means the Family Law Act 1975 as in force after

commencement.

old Act means the Family Law Act 1975 as in force immediately before

commencement.

43 Application

(1)

Section 60CC of the new Act applies to proceedings initiated on or after

commencement. Despite its repeal by item 5 of Schedule 5, section 68F

of the old Act continues to apply to proceedings initiated before

commencement.

(2)

The amendments made by items 13, 29 and 30 of this Schedule apply to

parenting orders made in proceedings initiated on or after

commencement.

(3)

The amendment made by item 14 of this Schedule applies to

proceedings under Part VII, whether or not the proceedings were

initiated before commencement.

(4)

The amendment made by item 15 of this Schedule applies to directions

given under subsection 62G(2) of the new Act on or after

commencement.

(5)

The amendment made by item 16 of this Schedule applies to parenting

plans made on or after commencement.

(6)

The amendment made by item 22 of this Schedule applies to parenting

orders made in proceedings initiated on or after commencement.

(7)

The amendment made by item 25 of this Schedule applies to parenting

orders made on or after commencement. This includes, without

limitation, a parenting order that varies an earlier parenting order,

whether the earlier parenting order was made before or after

commencement.

Shared parental responsibility Schedule 1

Application of amendments Part 2

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 33

(8)

Sections 65DAA, 65DAB, 65DAC and 65DAE of the new Act apply to

parenting orders made in proceedings initiated on or after

commencement.

(9)

The amendment made by item 33 of this Schedule applies to a court

proposing to make an order mentioned in subsection 65G(1) of the new

Act, whether or not the proceedings to which the order relates were

initiated before commencement.

Schedule 2 Compliance regime

Part 1 Amendments

34 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

Schedule 2--Compliance regime

Part 1--Amendments

Family Law Act 1975

1 Section 60C (table item 6)

Omit "--stage 1 of parenting compliance regime".

2 Section 60C (table item 13A)

Omit "--stage 2 of parenting compliance regime".

3 Section 60C (table item 13A)

Omit "--stage 3 of parenting compliance regime".

4 Subsection 65D(3)

Omit "paragraph 70NG(1)(c) of proceedings under Subdivision B",

substitute "paragraph 70NEB(1)(c) of proceedings under Subdivision

E".

5 Subsection 65D(3) (note)

Omit "Subdivision B", substitute "Subdivision E".

Note:

The heading to section 65DA is altered by omitting ": stage 1 of parenting compliance

regime".

6 Division 13A of Part VII

Repeal the Division, substitute:

Division 13A--Consequences of failure to comply with

orders, and other obligations, that affect children

Subdivision A--Preliminary

70NAA Simplified outline of Division

(1) This Division deals with the powers that a court with jurisdiction

under this Act has to make orders to enforce compliance with

orders under this Act affecting children.

Compliance regime Schedule 2

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 35

(2) The court always has the power to vary the order under

Subdivision B. In doing so, the court will have regard to any

parenting plan that has been entered into since the order was made

(see section 70NBB).

(3) The other orders that the court can make depend on whether:

(a) a contravention is alleged to have occurred but is not

established (Subdivision C); or

(b) the court finds that a contravention has occurred but there is a

reasonable excuse for the contravention (Subdivision D); or

reasonable excuse for the contravention (Subdivision E for

less serious contraventions and Subdivision F for more

serious contraventions).

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.

70NAC Meaning of contravened an order

A person is taken for the purposes of this Division to have

contravened an order under this Act affecting children if, and only

if:

(a) where the person is bound by the order--he or she has:

(i) intentionally failed to comply with the order; or

(ii) made no reasonable attempt to comply with the order;

(b) otherwise--he or she has:

(i) intentionally prevented compliance with the order by a

person who is bound by it; or

(ii) aided or abetted a contravention of the order by a person

who is bound by it.

Note:

Parenting orders may be subject to any subsequent parenting plan (see

section 64D). This means that an action that would otherwise

contravene a parenting order may not be a contravention, because of a

Schedule 2 Compliance regime

Part 1 Amendments

36 Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005

subsequent inconsistent parenting plan. Whether this is the case or not

depends on the terms of the parenting order.

70NAD Requirements taken to be included in certain orders

For the purposes of this Division:

(a) a parenting order that deals with whom a child is to live with

is taken to include a requirement that people act in

accordance with section 65M in relation to the order; and

(b) a parenting order that deals with whom a child is to spend

time with is taken to include a requirement that people act in

accordance with section 65N in relation to the order; and

communicate with is taken to include a requirement that

people act in accordance with section 65NA in relation to the

order; and

(d) a parenting order to which section 65P applies is taken to

include a requirement that people act in accordance with that

section in relation to the order.

70NAE Meaning of reasonable excuse for contravening an order

(1) The circumstances in which a person may be taken to have had, for

the purposes of this Division, a reasonable excuse for

contravening an order under this Act affecting children include,

but are not limited to, the circumstances set out in subsections (2),

(4), (5), (6) and (7).

(2) A person (the respondent) is taken to have had a reasonable

excuse for contravening an order under this Act affecting children

if:

(a) the respondent contravened the order because, or

substantially because, he or she did not, at the time of the

contravention, understand the obligations imposed by the

order on the person who was bound by it; and

(b) the court is satisfied that the respondent ought to be excused

in respect of the contravention.

(3) If a court decides that a person had a reasonable excuse for

contravening an order under this Act for the reason referred to in

paragraph (2)(a), it is the duty of the court to explain to the person,

in language likely to be readily understood by the person, the

Compliance regime Schedule 2

Amendments Part 1

Family Law Amendment (Shared Parental Responsibility) Bill 2005 No. , 2005 37

obligations imposed on him or her by the order and the

consequences that may follow if he or she again contravenes the

order.

(4) A person (the respondent) is taken to have had a reasonable excuse

for contravening a parenting order to the extent to which it deals

with whom a child is to live with in a way that resulted in the child

not living with a person in whose favour the order was made if:

(a) the respondent believed on reasonable grounds that the

actions constituting the contravention were necessary to

protect the health or safety of a person (including the

respondent or the child); and

(b) the period during which, because of the contravention, the

child did not live with the person in whose favour the order

was made was not longer than was necessary to protect the

health or safety of the person referred to in paragraph (a).

(5) A person (the respondent) is taken to have had a reasonable excuse

for contravening a parenting order to the extent to which it deals

with whom a child is to spend time with in a way that resulted in a

person and a child not spending time together as provided for in the

order if:

(a) the respondent believed on reasonable grounds that not

allowing the child and the person to spend time together was

necessary to protect the health or safety of a person

(including the respondent or the child); and

(b) the period during which, because of the contravention, the

child and the person did not spend time together was not

longer than was necessary to protect the health or safety of

the person referred to in paragraph (a).

(6) A person (the respondent) is taken to have had a reasonable excuse

for contravening a parenting order to the extent to which it deals

with whom a child is to communicate with in a way that resulted in

a person and a child not having the communication provided for

under the order if:

(a) the respondent believed on reasonable grounds that not

allowing the child and the person to communicate together

was necessary to protect the health or safety of a person

(including the respondent or the child); and

(b) the period during which, because of the contravention, the

child and the person did not communicate was not longer

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than was necessary to protect the health or safety of the

person referred to in paragraph (a).

(7) A person (the respondent) is taken to have had a reasonable excuse

for contravening a parenting order to which section 65P applies by

acting contrary to section 65P if:

(a) the respondent believed on reasonable grounds that the action

constituting the contravention was necessary to protect the

health or safety of a person (including the respondent or the

child); and

(b) the period during which, because of that action, a person in

whose favour the order was made was hindered in or

prevented from discharging responsibilities under the order

was not for longer than was necessary to protect the health or

safety of the person referred to in paragraph (a).

70NAF Standard of proof

(1) Subject to subsection (3), the standard of proof to be applied in

determining matters in proceedings under this Division is proof on

the balance of probabilities.

(2) Without limiting subsection (1), that subsection applies to the

determination of whether a person who contravened an order under

this Act affecting children had a reasonable excuse for the

contravention.

(3) The court may only make an order under:

(a) paragraph 70NFB(2)(a), (d) or (e); or

(b)

paragraph

70NFF(3)(a);

if the court is satisfied beyond reasonable doubt that the grounds

for making the order exist.

Subdivision B--Court's power to vary parenting order

70NBA Variation of parenting order

(1) A court having jurisdiction under this Act may make an order

varying a primary order if:

(a) proceedings in relation to the primary order are brought

before a court having jurisdiction under this Act; and

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(b) it is alleged in those proceedings that a person committed a

contravention of the primary order and either:

(i) the court does not find that the person committed a

contravention of the primary order; or

(ii) the court finds that the person committed a

contravention of the primary order.

(2) If Subdivision F applies to the contravention, when making an

order under subsection (1) varying a primary order, the court, in

addition to regarding, under section 60CA, the best interests of the

child as the paramount consideration, must, if any of the following

considerations is relevant, take that consideration into account:

(a) the person who contravened the primary order did so after

having attended, after having refused or failed to attend, or

after having been found to be unsuitable to take any further

part in, a post-separation parenting program or a part of such

a program;

(b) there was no post-separation parenting program that the

person who contravened the primary order could attend;

primary order, it was not appropriate, in the court's opinion,

for the person to attend a post-separation parenting program,

or a part of such a program;

(d) the primary order was a compensatory parenting order made

under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the

person had contravened a previous order under this Act

affecting children.

(3) This section does not limit the circumstances in which a court

having jurisdiction under this Act may vary a primary order.

70NBB Effect of parenting plan

(1) This section applies if:

(a) a parenting order has been made in relation to a child

(whether before or after the commencement of this section);

and

(b) after the parenting order was made, the parents of the child

made a parenting plan that dealt with a matter (the relevant

matter) that was dealt with in the parenting order.

(2)

If:

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(a) section 70NBA applies to proceedings brought in relation to

the parenting order in relation to the relevant matter; and

(b) the parenting plan was in force when the contravention of the

parenting order:

(i) is alleged to have been committed; or

(ii)

occurred;

the court must, in exercising its powers under section 70NBA:

(d) consider whether to exercise its powers under section 70NBA

to make an order varying the parenting order to include (with

or without modification) some or all of the provisions of the

parenting plan.

Note:

An action that would otherwise contravene a parenting order may not

be a contravention because of a subsequent inconsistent parenting

plan. Whether this is the case or not depends on the terms of the

parenting order (see section 64D).

Subdivision C--Contravention alleged but not established

70NCA Application of Subdivision

This Subdivision applies if:

(a) a primary order has been made, whether before or after the

commencement of this Subdivision; and

(b) proceedings in relation to the primary order are brought

before a court having jurisdiction under this Act; and

respondent) committed a contravention of the primary order;

and

(d) the court does not find that the respondent committed a

contravention of the primary order.

Note:

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

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:

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(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.

Subdivision D--Contravention established but reasonable

excuse for contravention

70NDA Application of Subdivision

This Subdivision applies if:

(a) a primary order has been made, whether before or after the

commencement of this Subdivision; and

(b) a court having jurisdiction under this Act is satisfied that a

person (the respondent) has, whether before or after the

commencement, committed a contravention (the current

contravention) of the primary order; and

for the current contravention.

Note:

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

70NDB Order compensating person for time lost

(1)

If:

(a) the primary order is a parenting order in relation to a child;

and

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(b) 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);

the court:

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; and

(d) must consider making that kind of order.

Note:

If the person does not have a reasonable excuse for a contravention,

the court has the power to make an order compensating a person for

time lost under paragraph 70NEB(1)(b) or 70NFB(2)(c).

(2) The court must not make an order under paragraph (1)(c) if it

would not be in the best interests of the child for the court to do so.

70NDC Costs

(1) If the court does not make an order under section 70NDB in

relation to the current contravention, 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, 70NEB or 70NFB in relation to the

contravention.

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Subdivision E--Contravention without reasonable excuse (less

serious contravention)

70NEA Application of Subdivision

(1) Subject to subsection (4), this Subdivision applies if:

(a) a primary order has been made, whether before or after the

commencement of this Division; and

(b) a court having jurisdiction under this Act is satisfied that a

person has, whether before or after that commencement,

committed a contravention (the current contravention) of the

primary order; and

excuse for the current contravention; and

(d) either subsection (2) or (3) applies;

and, if the primary order is an order for the maintenance of a child,

this Subdivision applies irrespective of the period since the current

contravention occurred.

(2) For the purposes of paragraph (1)(d), this subsection applies if no

court has previously:

(a) made an order imposing a sanction or taking an action in

respect of a contravention by the person of the primary order;

(b) under paragraph 70NEB(1)(c), adjourned proceedings in

respect of a contravention by the person of the primary order.

(3) For the purposes of paragraph (1)(d), this subsection applies if:

(a) a court has previously:

(i) made an order imposing a sanction or taking an action

in respect of a contravention by the person of the

primary order; or

(ii) under paragraph 70NEB(1)(c), adjourned proceedings in

respect of a contravention by the person of the primary

order; and

(b) the court, in dealing with the current contravention, is

satisfied that it is more appropriate for that contravention to

be dealt with under this Subdivision.

(4) This Subdivision does not apply if, in circumstances mentioned in

subsection (2), the court dealing with the current contravention is

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satisfied that the person who contravened the primary order has

behaved in a way that showed a serious disregard for his or her

obligations under the primary order.

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;

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

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(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:

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(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;

order and the occurrence of the current contravention;

(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.

70NEC Bonds

(1) This section provides for bonds that a court may require a person to

enter into under paragraph 70NEB(1)(d).

(2) A bond is to be for a specified period of up to 2 years.

(3) A bond may be:

(a) with or without surety; and

(b) with or without security.

(4) The conditions that may be imposed on a person by a bond include

(without limitation) conditions that require the person:

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(a) to attend an appointment (or a series of appointments) with a

family consultant; or

(b) to attend family counselling; or

(d) to be of good behaviour.

(5) If a court proposes to require a person to enter into a bond, it must,

before making the requirement, explain to the person, in language

likely to be readily understood by the person:

(a) the purpose and effect of the proposed requirement; and

(b) the consequences that may follow if the person:

(i) fails to enter into the bond; or

(ii) having entered into the bond--fails to act in accordance

with the bond.

70NED Duties of provider of post-separation parenting program

The provider of a post-separation parenting program must inform

the court if:

(a) the provider considers that a person ordered to attend the

program under paragraph 70NEB(1)(a) is unsuitable to attend

the program, or to continue attending the program; or

(b) a person ordered to attend the program under paragraph

70NEB(1)(a) fails to attend the program, or a part of it.

70NEF Evidence

(1) Evidence of anything said, or of any admission made, by a person

attending a post-separation parenting program is not admissible:

(a) in any court (whether exercising federal jurisdiction or not);

(b) in any proceedings before a person authorised by a law of the

Commonwealth, of a State or of a Territory, or by the

consent of the parties, to hear evidence.

(2) Subsection (1) does not apply to the following:

(a) an admission by an adult that indicates that a child under 18

has been abused or is at risk of abuse;

(b) a disclosure by a child under 18 that indicates that the child

has been abused or is at risk of abuse;

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unless, in the opinion of the court, there is sufficient evidence of

the admission or disclosure available to the court from other

sources.

70NEG Court may make further orders in relation to attendance at

program

The court may make such orders as it considers appropriate, other

than the orders referred to in subsection 70NFB(2), in respect of a

person, if:

(a) it appears to the court that the person has not attended a

post-separation parenting program that the person was

ordered to attend; or

(b) the person was assessed as unsuitable to attend a program.

Subdivision F--Contravention without reasonable excuse

(more serious contravention)

70NFA Application of Subdivision

(1) Subject to subsection (2), this Subdivision applies if:

(a) a primary order has been made, whether before or after the

commencement of this Division; and

(b) a court having jurisdiction under this Act is satisfied that a

person has, whether before or after that commencement,

committed a contravention (the current contravention) of the

primary order; and

excuse for the current contravention; and

(d) either subsection (2) or (3) applies.

Note:

For the standard of proof to be applied in determining whether a

contravention of the primary order has been committed, see

section 70NAF.

(2) For the purposes of paragraph (1)(d), this subsection applies if:

(a) no court has previously:

(i) made an order imposing a sanction or taking an action

in respect of a contravention by the person of the

primary order; or

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(ii) under paragraph 70NEB(1)(c), adjourned proceedings in

respect of a contravention by the person of the primary

order; and

(b) the court dealing with the current contravention is satisfied

that the person has behaved in a way that showed a serious

disregard of his or her obligations under the primary order.

(3) For the purposes of paragraph (1)(d), this subsection applies if a

court has previously:

(a) made an order imposing a sanction or taking an action in

respect of a contravention by the person of the primary order;

(b) under paragraph 70NEB(1)(c), adjourned proceedings in

respect of a contravention by the person of the primary order.

(4) This Subdivision does not apply if the court dealing with the

current contravention is satisfied that it is more appropriate for that

contravention to be dealt with under Subdivision E.

(5) This Subdivision applies whether the primary order was made, and

whether the current contravention occurred, before or after the

commencement of this Division.

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

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

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(b) to make an order requiring the person to enter into a bond in

accordance with section 70NFE; or

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

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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;

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.

70NFC When court is empowered to make a community service

order

(1) Subject to this section, if, under the law of a participating State or a

participating Territory, a court is empowered (whether generally or

in particular cases) to make a community service order in respect

of a person convicted of an offence against the law of the State or

Territory, a court exercising jurisdiction in the State or Territory

may, under paragraph 70NFB(2)(a) make a community service

order.

(2) A community service order made under paragraph 70NFB(2)(a):

(a) is to be such that the total number of hours during which the

order regulates the conduct of the person in respect of whom

it is made does not exceed the maximum period in relation to

the State or Territory in which the order is made; and

Commonwealth of Australia Bills

FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY) BILL 2005