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 (Joint Residency) Act 2002.

2 Commencement

This Act commences on the day on which it receives the Royal Assent.

3 Application of Acts Interpretation Act 1901

For the avoidance of doubt, section 15AB of the Acts Interpretation Act 1901 applies to the operation of this Act.

4 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Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Amendment of the Family Law Act 1975

1 After Division 10 of Part VII

Insert:

Division 10A—Joint residency

Subdivision A—What this Division does

68MA What this Division does

This Division recognises the fundamental right of every child to experience the love, guidance and companionship of both parents after their separation or divorce by assuring a child of frequent and continuing contact with both parents and to encourage parents to share the rights, duties and responsibilities of child rearing.

68MB Meaning of joint residence order

In this Division, joint residence order means an order made under subsection 64B(3) designating both parents as a child’s residence providers, and providing that residency of the child is shared in such a way as to assure the child of frequent and continuing contact with both parents. The child’s contact with each parent must be as equal as possible. A joint residence order obligates the parties to exchange information.

Subdivision B—Parenting orders and parenting plans

68MC Parenting orders

(1) In deciding to make a residence order in relation to a child, the court must regard the best interests of the child as the paramount consideration, as set out in subsections 68F(2) and 68F(3), in the following order of preference:

(a) to both parents jointly in a joint residence order;

(b) to either parent;

(c) to any other person deemed by the court to be suitable and able to provide an appropriate and stable environment.

(2) In considering whether to make an order under paragraph (1)(b), the court shall have regard, with all the factors set out in subsections 68F(2) and 68F(3), to which parent is more likely to allow the child frequent and continuing contact with the non-residence provider parent, and may not determine a parent as a designated residence provider because of the parent’s gender or race.

(3) The parent requesting to be the designated residence provider has the burden of proving that a joint residence order would not be in a child’s best interest.

(4) The parents may agree to a residence order in favour of one parent.

68MD Parenting plans

In making a residence order, the court in its discretion may require the submission of a plan for the implementation of the parenting order.

68ME Presumption

(1) There is a rebuttable presumption that joint residence orders are in the best interests of the child.

(2) The presumption in favour of a joint residence order may be rebutted by showing that it is not in the best interests of the child, after consideration of clear and convincing evidence with respect to all the factors in subsections 68F(2) and 68F(3).

68MF Reasons

(1) If the court declines to award a joint residence order, the court shall state in its decision the reasons for denying the award.

(2) An objection by a parent to a joint residence order is not a sufficient basis for a finding that a joint residence order is not in the best interests of a child, nor is a finding that the parents are hostile to each other.

(3) A statement that a joint residence order is not in the best interests of a child shall not be sufficient to meet the requirements of this Division.

68MG Modification

(1) A joint residence order may be modified or terminated upon the petition of one or both parents or on the court’s own motion if it is shown that the best interests of the child require modification or termination of the order.

(2) In an application for modification or termination, the court shall consider evidence of substantial or repeated failure of a parent to adhere to the plan for implementing the joint residence order.

(3) The court shall state in its decision the reason for modification or determination of the joint residence order if either parent opposes the modification or termination order.

(4) Any order specifying a parent as the child’s designated residence provider may be modified at any time to a joint residence order.

68MH Records

Notwithstanding any other provision of law, unless the court orders otherwise, access to records and information pertaining to a minor child, including but not limited to medical, dental and school records, shall not be denied to a parent because the parent is not the designated residence provider.

 

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