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FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY) BILL 2005

                             2004-2005



   THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                HOUSE OF REPRESENTATIVES




FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY)
                      BILL 2005




               EXPLANATORY MEMORANDUM




          (Circulated by authority of the Attorney-General,
                the Honourable Philip Ruddock, MP)
                   FAMILY LAW AMENDMENT BILL
             (SHARED PARENTAL RESPONSIBILITY) BILL 2005


GENERAL OUTLINE

This Bill amends the Family Law Act 1975 (the Act) to implement a significant
number of the recommendations of the report of the House of Representatives
Standing Committee on Family and Community Affairs (the FCAC) inquiry into child
custody arrangements in the event of family separation. The report, entitled
Every Picture Tells a Story, was released on 29 December 2003 (the FCAC Report).
The Bill also implements most of the recommendations made by the House of
Representatives Standing Committee on Legal and Constitutional Affairs
(the LACA Committee) in its report on the exposure draft of the Bill
(the LACA Report).

The amendments are part of the Government's bold new reform agenda in family law.
The legislation underpins the package of measures announced in the 2005 Budget.
The cost of the package is estimated at $397 million over four years. These initiatives
represent a generational change in family law and aim to bring about a cultural shift
in how family separation is managed: away from litigation and towards cooperative
parenting.

Schedule 1

The amendments in Schedule 1 recognise the need for a cooperative approach to
parenting. The amendments promote the object of ensuring that children have a right
to have a meaningful relationship with both their parents and that parents continue to
share responsibility for their children after they separate. The amendments also
reinforce the primary importance of the object of ensuring that children live in an
environment where they are safe from violence or abuse.

The amendments in Schedule 1 also advance the Government's long standing policy
of encouraging people to take responsibility for resolving disputes themselves, in a
non adversarial manner.

Schedule 2

Schedule 2 contains a range of amendments to strengthen the existing enforcement
regime in the Act. Breaches of court orders are a major source of conflict and distress
to all parties involved. The amendments provide the courts with a greater range of
options to better enforce parenting orders. This is necessary to ensure that one of the
main objects of Part VII of the Act is fulfilled and that children are able to have a
meaningful relationship with both parents. In addition, the amendments repeal the
existing Division 13A of Part VII of the Act and replace that Division with clearer
and more accessible provisions that will make the whole Division easier to
understand.
Schedule 3

The amendments in Schedule 3 provide for a less adversarial approach to be adopted
in all child-related proceedings under the Act. This approach relies on active
management by judicial officers of matters and ensures that proceedings are managed
in a way that considers the impact of the proceedings themselves (not just the
outcome of the proceedings) on the child. The intention is to ensure that the case
management practices adopted by courts will promote the best interests of the child
by encouraging parents to focus on their parenting responsibilities.

Schedule 4

Schedule 4 contains a range of amendments to the counselling and dispute resolution
provisions in the Act to ensure the legislation supports the Government's policy of
ensuring that separating and divorcing parents have access to quality family
counselling and dispute resolution services so that they can attempt to resolve their
disputes outside of the court. The amendments also provide the ability to protect the
names and symbols of certain services funded by the Government to provide
assistance and support to people in the family law system (such as the
Family Relationship Centres). This protection will enhance the level of protection for
these names and symbols in order to ensure that the public is not mislead.

Schedule 5

The amendments in Schedule 5 implement a number of the recommendations made
by the Family Law Council in its report, Pathways for Children: A review of
children's representation in family law, which examines the role and basis of
appointment of independent children's lawyers. The amendments aim to clarify and
strengthen the role of the independent children's lawyer for children, parties and
lawyers acting in the role.

Schedule 6

Schedule 6 repeals and replaces the existing Division 11 of Part VII. This Division
deals with the relationship between orders made under the Act that provide for a child
to spend time with a person, and family violence orders made under a law of a State
or Territory to protect a person from family violence. The amendments seek to make
Division 11 clearer, more concise and easier to understand by the people who use and
implement it, in particular, for State and Territory Magistrates making family
violence orders. The amendments implement recommendations on the basis of advice
provided by the Family Law Council.

Schedule 7

Schedule 7 repeals section 45A of the Act to enable the Federal Magistrates Court to
also exercise jurisdiction for those property matters where the value of the property
exceeds $700,000. This will provide more flexibility to ensure that matters are
referred to the most appropriate court.




                                          2
Schedule 8

Schedule 8 changes the terminology of the Act to remove the references to
`residence', `contact' and `specific issues orders'. This substantially implements
recommendation 4 of the FCAC Report. The changes require consequential
amendments to the terminology used in the Australian Citizenship Act 1948, the
Australian Citizenship Act 2005, the Australian Passports Act 2005, the Child
Support (Assessment) Act 1989 and the Migration Act 1958.

Schedule 9

Schedule 9 moves all the defined terms from Part VII of the Act to subsection 4(1)
which is the general definition section for the Act. This will form a dictionary for all
the terms defined in Part VII. The aim is to improve the readability of the Act for
users.

FINANCIAL IMPACT STATEMENT

Resources were approved in the 2005-2006 Budget process for a community
education campaign and for additional dispute resolution services to satisfy increased
demand caused by compulsory pre-filing dispute resolution.

REGULATION IMPACT STATEMENT

The Office of Regulation Review has considered these proposed amendments and
determined that a Regulation Impact Statement is not required for the amendments.




                                           3
CONSULTATION STATEMENT

There was broad consultation by the FCAC in its inquiry into child custody
arrangements in the event of family separation in the second half of 2003. The
Committee received 1716 submissions from a broad cross-section of the community
and family law system. The Committee undertook a wide ranging public hearing
program across Australia and consulted extensively with practitioners and academics
in the family law and child support fields. Two specific forums were held to ensure
that the Committee heard the voices of children and young people.

In November 2004 the Government released a discussion paper on its proposed
response to the FCAC report. The discussion paper was used as a basis for
consultation with the community, service providers and other stakeholders on the
proposed changes to the family law system. Twenty nine organisations were
interviewed individually, and there were 14 group meetings involving over 330
people. Over 400 written submissions were received.

Since July 2005, the Attorney-General has held community information sessions
across Australia to provide information about the proposed family law reforms. As
part of those sessions the Attorney-General invited feedback on the reforms to ensure
their effectiveness.

The Bill has been the subject of continuing community consultation since it was
released as an exposure draft in June 2005. In its consideration of the exposure draft,
the LACA Committee received some 88 submissions and held a number of hearings
with a large range of stakeholders.




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NOTES ON CLAUSES

Clause 1 ­ Short title

This clause provides for the Bill to be cited as the Family Law Amendment (Shared
Parental Responsibility) Act 2005.

Clause 2 ­ Commencement

2. This clause contains a table which sets out when each of the provisions of the Bill
commences.

3. Item 1 of the table provides that Sections 1 to 3 of the Bill (which provide for the
short title of the Act, the application of the schedules, and this commencement
provision) and anything else in the Bill not covered by the table, commence on the
day which the Bill receives Royal Assent.

4. Item 2 of the table provides that Schedules 1 and 2 commence on a single day to
be fixed by Proclamation. The amendments in Schedule 1 support and promote
shared parenting and encourage people to resolve post separation parenting
arrangements outside of the courts. Schedule 2 implements a range of amendments to
strengthen the existing compliance regime.

5. If any of the provisions in Schedules 1 and 2 do not commence within 6 months
from the day on which the Bill receives Royal Assent, item 2 of the table provides
that they will commence on the first day after this period.

6. Item 3 of the table provides that Schedule 3, which provides for a less adversarial
approach to be adopted in child-related proceedings under the Act, commences on 1
July 2006. This date coincides with the expected commencement of the Family
Relationship Centres and the Family Court of Australia is expected to have rolled out
their Children's Cases Program by this date. This is also consistent with the
application provision in item 8, Part 2 of this Schedule which provides that the
amendments in the Schedule apply to proceedings commenced on or after
1 July 2006.

7. Item 4 of the table provides that items 1 ­ 8 of Schedule 4 commence on the day
on which this Bill receives Royal Assent. These items will enable a wider range of
organisations to apply for approval and funding as a counselling or mediation
organisation, and provide for the protection against unauthorised use of protected
names and symbols, such as those used by Family Relationship Centres. As the first
15 Family Relationship Centres are expected to commence operation in mid-2006, the
amendments made in this Part must take place as soon as possible to allow funding to
be provided if an organisation other than a voluntary organisation applies for and is
selected to receive funding.

8. Item 5 of the table provides that items 9 ­ 139 of Schedule 4 commence on the
day on which the items are proclaimed. This is linked to the Proclamation of
Schedules 1 and 2 by item 2. Items 9 - 139 include a range of amendments to the
counselling and dispute resolution provisions in the Act to ensure the legislation
supports the Government's policy of ensuring that separating and divorcing parents


                                           5
have access to quality family counselling and dispute resolution services so they can
attempt to resolve their disputes outside of the court, transitional arrangements in
respect of changes to the process of approving organisations to provide family
counselling and family dispute resolution and individual accreditation requirements,
and a range of consequential amendments to the Federal Magistrates Act 1999 and
the Marriage Act 1961.

9. Item 6 of the table provides that Schedules 5, 6, and 7 commence at the same time
as the provisions covered by table item 2 (the provisions in Schedules 1 and 2).
Schedule 5 contains amendments to clarify and strengthen the role of the independent
children's lawyer. Schedule 6 repeals and replaces the existing Division 11 which
deals with the relationship between orders made under the Act and family violence
orders made under a law of a State or Territory. Schedule 7 amends the jurisdictional
limit for the Federal Magistrates Court to provide more flexibility to ensure that
matters are referred to the most appropriate court.

10. Item 7 of the table provides for the contingent commencement of item 1 of
Schedule 8. Item 1 amends the definition of `responsible parent' in section 5 of the
Australian Citizenship Act 1948. It is to commence at the same time as the provisions
covered by table item 2 (the provisions in Schedules 1 and 2), unless the Australian
Citizenship Act 2005 commences before that time. In this case, item 1 will not
commence at all. Item 2 of Schedule 8 will achieve the necessary amendment. This
provision is necessary as the Australian Citizenship Act 1948 is currently in force but
may be replaced by the Australian Citizenship Act 2005 before Schedule 8
commences.

11. Item 8 of the table provides for the commencement of item 2 of Schedule 8. Item
2 amends the definition of `responsible parent' in section 6 of the Australian
Citizenship Act 2005. It is to commence either at the same time as the provisions
covered by table item 2 (the provisions in Schedules 1 and 2), or immediately after
the Australian Citizenship Act 2005 commences, whichever is later.

12. Item 9 of the table provides for the commencement of the remaining items in
Schedule 8 (items 3 ­ 98) which change the terminology of the Act to remove
references to the terms `residence', `contact' and `specific issues orders'. These
provisions commence at the same time as the provisions covered by table item 2 (the
provisions in Schedules 1 and 2).

13. Item 10 of the table provides for the commencement of the items in Schedule 9.
The provisions in this schedule move the defined terms from Part VII (Children) of
the Act to subsection 4(1) which is the general definition section for the Act. This
forms a dictionary for all the terms defined in Part VII. These provisions commence
at the same time as the provisions covered by table item 2 (the provisions in
Schedules 1 and 2).

Clause 3 ­ Schedules

14. This clause provides that each Act that is specified in a Schedule to the Bill is
amended or repealed as set out in the applicable items in the Schedule.




                                           6
SCHEDULE 1 ­ SHARED PARENTAL RESPONSIBILITY

Part 1 ­ Amendments

Family Law Act 1975

15. The amendments in Schedule 1, Part 1 recognise the need for a cooperative
approach to parenting. The amendments promote the object of ensuring that children
have a right to have a meaningful relationship and know both their parents and that
parents continue to share responsibility for their children after they separate. The Part
also reinforces the primary importance for the child to live in an environment where
they are safe from violence or abuse. The changes to the Act also advance the
Government's longstanding policy of encouraging people to take responsibility for
resolving disputes themselves, in a non-adversarial manner.

16. Schedule 1, Part 1 implements a number of recommendations made by the FCAC
to support and promote shared parenting and to encourage people to reach agreements
about parenting, rather than using the court system. It also implements a number of
recommendations made by the LACA Committee in their inquiry into the provisions
of the exposure draft of the Bill.

Item 1 ­ Subsection 4(1)

17. Item 1 inserts a definition of `Aboriginal child' into the consolidated definitions
in subsection 4(1) of the Act. The definition facilitates new paragraphs 60B(2)(e)
and 60CC(3)(h), and subsections 60B(3) and 60CC(6), which relate to the right of an
Aboriginal or Torres Strait Islander child to enjoy his or her own culture. The
amendment implements recommendation 45 of the LACA Report that `Aboriginal
child' means `a child who is a descendent of the Aboriginal people of Australia'.

18. While this definition replaces the previous definition of 'Aboriginal peoples' in
subsection 68F(4) of the existing Act, it is not envisaged that this will significantly
change the group of people who may be covered by the definition. It will make the
definition of Aboriginal child consistent with the previous definition of Torres Strait
Islander child. The LACA Committee considered it appropriate for the definitions of
Aboriginal and Torres Strait Islander children to be standardised and to focus on the
fact of indigenous descent rather than race.

Item 2 ­ Subsection 4(1)

19. Item 2 inserts a definition of `Aboriginal or Torres Strait Islander culture' into the
general definitions in subsection 4(1), which now sets out the definitions for Part VII
of the Act. This definition facilitates new paragraphs 60B(2)(e) and 60CC(3)(h), and
subsections 60B(3) and 60CC(6), which relate to the right of an Aboriginal or Torres
Strait Islander child to enjoy his or her own culture. The term `Aboriginal or Torres
Strait Islander culture' means the culture of the Aboriginal and Torres Strait Islander
community or communities to which the child belongs, which includes, but is not
limited to, the lifestyle and traditions of that community or communities. This
implements recommendation 46 of the LACA Report that the definition be redrafted
to include the words `of the relevant community/communities'. The LACA


                                            7
Committee adopted this recommendation from a submission by the Aboriginal Legal
Service of Western Australia.

Item 3 - Subsection 4(1)

20. Item 3 moves the definition of 'family violence' from section 60D of the existing
Act (that provides definitions for Part VII) to the general definition provision in
subsection 4(1). The definition has also been amended to implement recommendation
9 of the LACA Report that the definition of family violence should include an
objective element. A requirement of `reasonableness' is added to the existing
definition. While there is no requirement for reasonableness for violence that has
actually occurred, fear or apprehension of violence must be reasonable. This will
help to address concerns that have been expressed that allegations of family violence
can be made in family law proceedings even where a fear of violence is far fetched or
fanciful.

21. This approach is not new. In South Australia, the Domestic Violence Act 1994
has for some time provided a concept of `reasonable' fear or apprehension in relation
to the definition of family violence. In addition, several State criminal codes have
elements of reasonableness in relation to specific offences, in particular stalking type
offences which also require a reasonable apprehension or fear to be established.

22. This change will not make it harder for people to disclose family violence. It does
not change the definition where there has been actual violence. The courts already
impute an element of reasonableness when applying the existing definition of family
violence. However, this change will clarify, particularly for self-represented litigants,
that the court will only take into account issues of violence where the fear of harm is
`reasonable'. This change is not intended to suggest that violence is acceptable.
Given the serious consideration that courts give to family violence in making
parenting orders these matters should be objectively tested. Family violence crime
and should not be tolerated.

Item 4 ­ Subsection 4(1)

23. Item 4 inserts a new definition of `major long-term issues' into the general
definitions in subsection 4(1), which now sets out the definitions for Part VII of the
Act. The definition provides a non-exclusive list of the types of long-term care,
welfare and development issues which are components of parental responsibility.
These long-term issues may include the child's education (both current and future),
the child's religious and cultural upbringing, the child's health, the child's name, and
changes to the child's living arrangements that make it significantly more difficult for
a child to spend time with a parent. This last provision is consistent with
recommendation 3 of the FCAC Report and has been amended in light of
recommendation 2 of the LACA Report.

24. It is intended that `the child's education' in paragraph (a) will capture issues such
as which school a child attends. `The child's religious and cultural upbringing' in
paragraph (b) is intended to include decisions relating to which religion a child is, or
which cultural practices a child might observe. It is intended that `the child's health'
in paragraph (c) will not capture a child's short-term illness, such as a cold, but may


                                           8
capture issues such as immunisation, which may affect the child's long-term health or
when the child has ongoing medical needs. It is intended that `the child's name' in
paragraph (d) of the definition will capture a child's first name, middle name and
surname.

25. `Changes to the child's living arrangements that make it significantly more
difficult for the child to spend time with a parent' in paragraph (e) is intended to cover
any substantial changes to the type and location of the residence in which the child
usually lives. Paragraph (e) is not intended to cover situations where the child
relocates to another residence within the same locality unless it is a significant change
that impacts on the child's ability to spend time with the parent.

26. The insertion of the note clarifies that paragraph (e), as a major long-term issue,
does not include decisions that parents make about their new partners. This
implements recommendation 2 of the LACA Committee which noted that the key
issue about decisions related to where a child lives is the capacity for the other parent
to maintain and develop a relationship by spending time with that child. Paragraph
(e) does not prevent a new partner moving into a residence where the child lives
without a joint decision with the former spouse. The factor is intended to cover
situations such as significant relocation where joint decisions are appropriate given
the significant impact on the capacity for both parents to exercise parental
responsibility.

27. The concept of `major long-term issues' is relevant for new sections 65DAC and
65DAE, both inserted by item 31. These sections provide that, where parents are
exercising shared parental responsibility in accordance with the terms of a parenting
order that involves making a decision about a major long-term issue in relation to a
child, both parents are required to discuss any proposed decision with each other and
reach agreement about the decision. However, where a child is spending time with a
person pursuant to the terms of a parenting order, that person is not required to
consult on decisions about issues that arise during that time that are not major long-
term issues. Of course, parents may choose to consult on these issues. The
clarification of what issues are major long-term issues is intended to reduce disputes
about what falls into this category and to make it clear that day to day decisions can
be made by the parent who has care of the child, thus reducing litigation about those
issues.

Item 5 ­ Subsection 4(1)

28. Item 5 inserts a new definition of `relative' into the general definitions in
subsection 4(1), which now sets out the definitions for Part VII of the Act. It is a
broad definition of `relative', which includes step-parents, siblings, half-siblings,
grandparents, uncles, aunts, nephews, nieces and cousins. This definition is relevant
for new subsections 63C(2A), 64B(2), paragraphs 60CC(3)(b) and 60CC(3)(f) and
subparagraph 60CC(3)(d)(ii). Item 5 implements recommendation 44 of the LACA
Committee which recommended using the term `step-parent' rather than `step-father
or step-mother' in the definition of relative. This broad definition is intended to
ensure the court takes account of other significant relationships that may be of benefit
to a child in making children's orders.



                                            9
Item 6 ­ Subsection 4(1)

29. Item 6 inserts a definition of `Torres Strait Islander child' into the general
definitions in subsection 4(1), which now sets out the definitions for Part VII of the
Act. It provides that `Torres Strait Islander child' means a child who is a descendent
of the indigenous inhabitants of the Torres Strait Islands. This is a relatively common
definition, which was previously defined in subsection 68F(4) of the Act. This
definition has been used in legislation such as the Native Title Act 1993, the Racial
Discrimination Act 1975 and the new Corporations (Aboriginal and Torres Strait
Islander) Bill 2005. This definition facilitates new paragraphs 60B(2)(e)
and 60CC(3)(h), and subsections 60B(3) and 60CC(6), which relate to the right of an
Aboriginal or Torres Strait Islander child to enjoy his or her own culture.

Item 7 - At the end of section 4

30. Item 7 inserts two new subsections into the definitions in section 4 of the Act to
facilitate the operation of the new provisions relating to shared parental responsibility.
Section 4 contains definitions of terms and provisions that are used in the Act. The
new subsections make clear that where the Act refers to a person having shared
parental responsibility for a child, it is a reference to parental responsibility held
singularly or jointly with another person. This recognises that when referring to
`parental responsibility', not all parents will share all aspects of the duties,
responsibilities or authorities associated with parental responsibility, but that they
may share a component or components of that responsibility while other components
may be the responsibility of one parent only. These subsections are important to
clarify the scope of the term.

Item 8 ­ Section 60B

31. Item 8 repeals the existing objects and principles of Part VII of the Act, which are
set out in section 60B. The new provision better focuses the objects and principles of
the Part on the best interests of the child and shared parental responsibility between
parents. It implements recommendation 3 of the FCAC Report and
recommendation 17 of the LACA Report.

32. New subsection 60B(1) states that the objects of Part VII are to ensure that the
best interests of children are met by the items set out in paragraphs (a), (b), (c) and
(d). The inclusion of the reference to `the best interests of children' is to give greater
emphasis to those interests when interpreting other provisions.

33. The objects that were already provided for in section 60B of the Act are now set
out in subparagraphs 60B(1)(c) and (d). These include ensuring that children receive
adequate and proper parenting to help them achieve their full potential and ensuring
that parents meet their responsibilities concerning the care, welfare and development
of their children.

34. Section 60B also includes two new objects. These objects mirror the primary
considerations in new section 60CC that must be considered by a court in making
decisions about the best interests of the child. These two new objects are placed at


                                            10
the start of the objects provision to draw attention to them. There is no particular
priority to the objects ­ each is important. The first is set out in paragraph 60B(1)(a).
It recognises the importance of ensuring that children are given the opportunity for
their parents to have a meaningful involvement in their lives to the maximum extent
possible, consistent with their best interests. The intention is to better recognise that
children have a right to know their parents and the benefit to children of having a
good relationship with both of their parents. However, it is also recognised that this
may not be appropriate in situations such as where the safety of the child would be at
risk.

35. The second new object is inserted in new paragraph 60B(1)(b). It recognises that
there is a need for children to be protected from physical and psychological harm
from being subjected to, or exposed to, abuse, neglect or family violence. The
provision recognises that children need to be protected not only from direct harm but
also harm caused by being exposed to abuse or family violence that is directed
towards, or affects, another person. This would cover, for example, the possible
psychological harm to a child caused by the child witnessing abuse against another
child, or family violence against a member of the child's family. This new object
implements recommendation 2 and conclusion 2.29 of the FCAC Report and
recommendations 17 and 18 of the LACA Report. The term `subjected to' has been
retained as well as `exposed to' in the drafting to make clear that it covers protection
both from direct harm and from witnessing violence towards another person.

36. The terms `abuse' and `family violence' are relocated to the general definition
section at subsection 4(1). Family violence is amended by item 3 to include an
element of `reasonableness'. The term `neglect', will have a similar meaning to its
use in State and Territory child protection legislation. It is intended to be limited to
situations where a lack of reasonable care is likely to cause unnecessary suffering or
injury to the health of the child.

37. Subsection 60B(2) sets out the principles that underlie the objects of the Act.
Paragraph 60B(2)(a) remains the same as in the existing Act. It states that children
have the right to know and be cared for by both their parents, regardless of whether
their parents have married, separated or have never married or lived together.

38. Paragraph 60B(2)(b) is amended to specifically refer to children having a right to
spend time on a regular basis with grandparents and other relatives who are
significant to their care, welfare and development. This amendment recognises the
important role that grandparents and other relatives play in a child's life. It
implements recommendation 43 of the LACA Report and is consistent with the other
amendments in the Bill to facilitate greater involvement of extended family members
in the lives of children.

39. Paragraphs 60B(2)(c) and (d) provide that parents should jointly share duties and
responsibilities concerning the care, welfare and development of their children and
should agree about the future parenting of their children. These principles remain
essentially the same as in the existing Act.

40. New subparagraph 60B(2)(e) expands the existing principles that underlie the
objects of Part VII, by including a reference to children having a right to enjoy their


                                           11
culture. The provision is intended to ensure that children are able to share their
culture with others in their cultural community or communities (in situations where a
child might belong to more than one community). The inclusion of this principle is
consistent with the provisions relating specifically to Aboriginal and Torres Strait
Islander children resulting from recommendation 3 of the Family Law Council's
December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait
Islander Child-Rearing Practices: Response to Recommendation 22: Pathways
Report, Out of the Maze. It is not intended to be limited only to Aboriginal and
Torres Strait Islander children.

41. As detailed above, new subparagraph 60B(2)(e) inserts a new principle that every
child has a right to enjoy his or her culture. New subsection 60B(3) expands this
principle, which underlies the objects of Part VII, in relation to Aboriginal and Torres
Strait Islander children by identifying matters included in the right of an Aboriginal or
Torres Strait Islander child to enjoy his or her culture. New subsection 60B(3)
clarifies that the right includes the right of an Aboriginal or Torres Strait Islander
child to maintain a connection with his or her culture and to have the support,
opportunity and encouragement necessary to develop a positive appreciation of that
culture and to explore the full extent of that culture, consistent with the child's age
and developmental level and the child's views.

42. These changes implement recommendation 3 of the Family Law Council's
December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait
Islander Child-Rearing Practices: Response to Recommendation 22: Pathways
Report, Out of the Maze. These changes are also consistent with other changes in the
Act to ensure the role of relatives and extended family is better recognised.

Item 9 ­ After Subdivision B of Division 1 of Part VII

Subdivision BA ­ Best interests of the child

43. Item 9 inserts a new Subdivision dealing with the best interests of the child into
Division 1 of Part VII. This will give greater prominence at the start of the Division
to these issues which are relevant to a large range of issues. This is aimed to assist
people making agreements to make all their post separation decisions with a child
focus. The consolidation of the provisions close to the start of Part VII is useful given
the greater prominence to the best interests now in the objects and principles in
section 60B.

Section 60CA ­ Child's best interest's paramount consideration in making a
parenting order

44. Section 60CA moves the existing section 65E which provides that the court must
regard the best interests of the child as the paramount consideration in deciding
whether to make a particular parenting order to section 60CA in new Subdivision BA
in Division 1, Part VII (Children). The intention is to increase the visibility and
emphasis of this important provision. This is consistent with recommendation 16 of
the LACA Committee.

Section 60CB ­ Proceedings to which this Subdivision applies


                                           12
45. Section 60CB describes the proceedings to which the new Subdivision BA will
apply. These include:
        ·      any proceedings under Part VII of the Act dealing with children in
               which the best interests of a child are the paramount consideration;
               and
        ·      proceedings in relation to a child to which subsection 60G(2), 63F(2)
               or 63F(6) or section 68R apply as in these provisions the best interest
               of the child must be considered.

46. The note to section 60CB highlights that Division 10 allows a court to make an
order for a child's interests to be independently represented by a lawyer in
proceedings under Part VII in which the best interests of a child are the paramount
consideration.

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

47. Section 60CC replaces existing section 68F. It is the section that sets out the
primary and additional considerations for the court to consider in determining a
child's best interests.

Section 60CC(2) - Primary considerations

48. The amendment to section 60CC creates two tiers of considerations that the court
must take account of in determining what is in the best interests of a child. The
primary considerations are contained in the new subsection 60CC(2). They include
the benefit to the child of having a meaningful relationship with both parents and the
protection of the child from physical and psychological harm. The safety of the child
is not intended to be subordinate to the child's meaningful relationship with both
parents. The intention of separating these factors into two tiers is to elevate the
importance of the primary factors and to better direct the court's attention to the
revised objects of Part VII of the Act which are set out in the new section 60B
(inserted by item 8).

49. For example in a case where there is family violence or sexual abuse then
keeping the child safe will have particular relevance. In other cases not involving any
issues of safety that will be less relevant and the issue of the benefit of a meaningful
relationship with both parents will be the primary factor although other factors in the
secondary list, such as the child's views, or failure to previously fulfil parental
responsibilities without any reason may also be considered as relevant.

50. There may be some instances where these secondary considerations may
outweigh the primary considerations. For example the court may have a case of a
teenage indigenous child who wants to keep living with a parent to maintain their
connection to traditional culture. The other parent who lives far away and is unable to
travel regularly also seeks residence. They also have demonstrated that they will not
facilitate connection with culture. In such a circumstance the court may well decide
that for that particular child the secondary factors may effectively outweigh that
consideration and that it would not be in the best interests of that child to change
residence, the court may consider other ways the child and parent can maintain a
meaningful relationship.


                                          13
51. The primary factors mirror the first two objects set out in new section 60B.
These objects are elevated to primary considerations as they deal with important
rights of children and encourage a child-focused approach. The elevation of the
object relating to the benefit to the child of having a meaningful relationship with
both parents is consistent with the introduction of a presumption in favour of equal
shared parental responsibility.

52. The wording of the new primary factor concerning the need to protect children
from harm is consistent with the approach recommended by the LACA Committee in
recommendation 18. The Committee recommended simplifying the provision so that
the phrase is simple and forceful and focuses on the key issue of ensuring safety of
the child.

Additional considerations ­ Section 60CC(3)

53. The second tier of additional considerations in the new subsection 60CC(3)
consists of the existing considerations in subsection 68F(2) of the Act. These have
been modified as outlined below.

Paragraph 60CC(3)(a)

54. The references to a child's `wishes' in paragraph 68F(2)(a) have been changed to
references to a child's `views'. Paragraph 60CC(3)(a) now provides that in
determining what is in a child's best interests the court must consider, amongst other
factors, any `views' expressed by the child and any other factors that the court thinks
are relevant to the weight it should give to the child's `views'.

55. The amendment recognises that a child may not necessarily want to express a
`wish' about which of his or her parents the child will live with or spend time with. It
is intended that `views' will also capture a child's perceptions and feelings, and will
allow for any decision to be made in consultation with the child without the child
having to make a decision or express a `wish' as to which parent he or she is to live
with or spend time with. It is intended that references to a child's `views' will not
exclude a child expressing his or her `wishes'.

56. Replacing references to a child's `wishes' to a child's `views' is also consistent
with the wording in Article 12 of the United Nations Convention on the Rights of the
Child.

Paragraph 60CC(3)(b)

57. New paragraph 60CC(3)(b) replaces existing paragraph 68F(2)(b) with a
modification. Existing paragraph 68F(2)(b) provides that where the court is
determining the best interests of the child, it must consider the nature of the
relationship with each of the child's parents and with other persons. This provision
has been modified to include an explicit reference to grandparents or other relatives of
the child. This change further ensures that the court recognises the importance of the
relationships that the child has with their wider family, in particular grandparents.




                                          14
Paragraph 60CC(3)(c)

58. A new consideration in determining what is in the best interests of a child has
been added in paragraph 60CC(3)(c). The additional consideration is 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. This criterion will
need to be considered by the court along with the other criteria set out in subsection
60CC(2) and (3) when making a parenting order. New subsection 60CC(4) also
provides that when considering this factor, the court must consider the extent to which
each of the parents has fulfilled or failed to fulfil their parental obligations.

Paragraph 60CC(3)(d)

59. Paragraph 60CC(3)(d) replaces existing paragraph 68F(2)(c) with a modification.
Subparagraph 68F(2)(c)(ii) has been modified to make an explicit reference to
grandparents or other relatives. The existing provision provides that, in determining
what is in the best interests of a child, the court should consider the likely effect of
any change of the child's circumstances particularly in relation to separation from his
or her parents and other persons with whom the child has a relationship. New
subparagraph 60CC(3)(d)(ii) makes an explicit reference to grandparents or other
relatives. This change ensures that the court recognises the importance of the
relationships that the child has with wider family in particular grandparents.

Paragraph 60CC(3)(e)

60. Paragraph 60CC(3)(e) mirrors the existing paragraph 68F(2)(d) which requires
the court, when determining a child's best interests, to consider the practical difficulty
and expense of a child having contact with a parent and whether this will affect the
child's right to maintain direct contact with both parents on a regular basis.

Paragraph 60CC(3)(f)

61. Paragraph 60CC(3)(f) replaces existing paragraph 68F(2)(e) with a modification.
Paragraph 68F(2)(e) has been modified to make an explicit reference to grandparents
or other relatives. This provision provides that in determining the best interests of the
child, the court should consider the capacity of the parent or of any other person to
provide for the needs of the child, including emotional and intellectual needs. The
amended paragraph 60CC(3)(f) recognises the importance of the relationships that the
child has with wider family, in particular grandparents.

Paragraphs 60CC(3)(g) and (h)

62. Paragraphs 60CC(3)(g) and (h) replace existing paragraph 68F(2)(f). Paragraph
68F(3)(g) provides that the court must consider the maturity, sex, lifestyle and
background of the child, and either of the child's parents, as well as any other
characteristics of the child that the court thinks are relevant. The lifestyle, culture and
traditions of a parent or child are relevant to a consideration of their background.

63. Aboriginal peoples and Torres Strait Islanders are now referred to specifically in
the new subparagraph 60CC(2)(h). The subparagraph provides that the court must


                                            15
take into account the right of an Aboriginal or Torres Strait Islander child to enjoy his
or her culture, and the likely impact that any proposed parenting order will have on
that right. This paragraph supports recommendation 4 in the Family Law Council's
December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait
Islander Child-Rearing Practices: Response to Recommendation 22: Pathways
Report, Out of the Maze.

64. The existing paragraph 68F(2)(g) which deals with the need to protect the child
from physical or psychological harm has been elevated to a primary consideration in
the new subsection 60CC(2) (discussed above). The wording of this factor has also
been simplified in accordance with recommendation 18 of the LACA Report.

Paragraph 60CC(3)(i)

65. Paragraph 60CC(3)(i) mirrors the existing paragraph 68F(2)(h) which requires
the court, when determining a child's best interests, to consider the attitude of a parent
to the child and the responsibilities of parenthood. New subsection 60CC(4) provides
that in considering this factor, the court must consider to extent to which each of the
child's parents has fulfilled, or failed to fulfil, his/her responsibilities as a parent.
This includes the extent to which each parent has taken, or failed to take, the
opportunity to spend time with the child, communicate with the child, and participate
in decision-making about major long-term issues in relation to the child. It also
includes the extent to which each parent has facilitated, or failed to facilitate, the
other parent doing these things and the extent to which each parent has fulfilled, or
failed to fulfil, his/her obligation to maintain the child.

Paragraph 60CC(3)(j)

66. Paragraph 60CC(3)(j) mirrors the existing paragraph 68F(2)(i) which directs the
court to consider any family violence involving the child or a member of the child's
family. The court will take this into account giving such weight as is appropriate to
the evidence before it. Item 3 moves the definition of family violence to the general
definition provision at subsection 4(1) of the Act. It also amends the definition to
include an element of "reasonableness" in the fear or apprehension of violence. That
amendment is consistent with recommendation 9 of the LACA Report.

Paragraph 60CC(3)(k)

67. Paragraph 60CC(3)(k) modifies the existing paragraph 68F(2)(j) which directs a
court to consider any family violence order that applies to the child or a member of
the child's family. New paragraph 60CC(3)(k) provides that this only includes a final
or contested family violence order. The intention of this subsection is to ensure that
the court does not take account of uncontested or interim family violence orders. This
should address a perception that violence allegations are taken into account without
proven foundation in some family law proceedings.

68. The Government does not consider that that this amendment has the potential to
place children at risk. In determining the best interests of the child, the court will
consider, as a primary consideration, the need to protect children from harm under
subsection 60CC(2). The court may also have regard to any family violence


                                           16
involving the child or a member of the child's family under paragraph 60CC(3)(j).
The LACA Committee considered this amendment appropriate.

69. In relation to allegations of violence, Schedule 3 contains amendments to
implement new procedures for the conduct of those family law matters that do go to
court. The more active case management approach will ensure that allegations of
violence and abuse are dealt with at an earlier stage in the court process and that
judicial officers are better able to ensure that appropriate evidence is before them to
assist the court to better address these issues in the proceedings. New section 60K
(inserted by item 11) places an obligation on the court to take prompt action in
relation to allegations of child abuse or family violence.

Paragraphs 60CC(3)(l) and (m)

70. Paragraphs 60CC(3)(l) and (m) mirror the existing paragraphs 68F(2)(k) and (l)
which direct the court to consider 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 and any other fact or circumstances that the court thinks is relevant.

Subsection 60CC(4)

71. Subsection 60CC(4) provides that in considering the factors set out at paragraphs
60CC(3)(c) and (i), the court must consider to extent to which each of the child's
parents has fulfilled, or failed to fulfil, his/her responsibilities as a parent. This
includes the extent to which each parent has taken, or failed to take, the opportunity to
spend time with the child, communicate with the child, and participate in decision-
making about major long-term issues in relation to the child. It also includes the
extent to which each parent has facilitated, or failed to facilitate, the other parent
doing these things and the extent to which each parent has fulfilled, or failed to fulfil,
his/her obligation to maintain the child. It would not cover a situation where a parent
is willing to fulfil their obligations but prevented due to the other parents
unwillingness to facilitate this. The court would in such a case be taking account of
the unwillingness.

72. New subsection 60CC(4) seeks to ensure that when determining the best interests
of the child the court is able to take into account whether a person has failed to fulfil
their parental responsibility obligations in the past. Thus the court will take into
account the fact a person has failed to pay child support or has consistently broken
contact arrangements in the past without regard to the best interests of their child.
This is appropriate as the failure of a parent to fulfil their parental responsibility
obligations can have a significant impact on the child and is relevant to any
determination of the child's best interests.

Subsection 60CC(5) ­ Consent orders

73. New subsection 60CC(5) provides that if the court is considering whether to
make an order with the consent of all the parties to the proceedings, the court may
have regard to all or any of the matters set out in subsections (2) and (3). These
subsections contain the primary and additional considerations that a court considers in
determining a child's best interests. This allows the court to take these considerations


                                            17
into account and is consistent with the Government's policy of encouraging people to
take responsibility for resolving disputes themselves, in a non-adversarial manner.
The provision is essentially the same as the existing subsection 68F(3).

Subsection 60CC(6) ­ Right to enjoy Aboriginal or Torres Strait Islander culture

74. For the purpose of new paragraph 60CC(3)(h), new subsection 60CC(6) clarifies
the meaning of an Aboriginal or a Torres Strait Islander child's right to enjoy his or
her culture. The provision reflects the importance of Aboriginal and Torres Strait
Islander children being able to maintain a connection with their culture and to have
the support, opportunity and encouragement necessary to develop a positive
appreciation of that culture and to explore the full extent of that culture, consistent
with the child's age and developmental level and the child's views. These changes
are made as a result of recommendation 4 in the Family Law Council's December
2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-
Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the
Maze.

Section 60CD ­ How the views of a child are expressed

75. Section 60CD replaces the existing subsection 68G(1) which is the section that
deals with how the court may inform itself of views expressed by a child. Section
60CD changes the references to a child's `wishes' to a child's `views.' Subsection
60CD(1) now provides that the section deals with how a court is to consider a child's
`views', rather than a child's `wishes', under paragraph 60CC(2)(a) of the Act when
making a determination about what is in a child's best interests. Subsection 60CD(2)
provides that a court may inform itself of the `views', rather than the `wishes',
expressed by a child by having regard to a report prepared by the relevant person or,
subject to any applicable Rules of Court, by such other means as the court thinks
appropriate.

76. The reasons for this change are outlined in relation to Paragraph 60CC(3)(a),
above.

Section 60CE ­ Children not required to express views

77. Section 60CE replaces the existing section 68H. It changes the references to a
child's `wishes' to a child's `views'. Section 60CE now provides that nobody can
require a child to express his or her `views' in relation to the any issue. The reasons
for this change are outlined in relation to Paragraph 60CC(3)(a), above.

Section 60CF ­ Informing court of relevant family violence orders

78. Section 60CF sets out the responsibility of the parties to the proceedings to
inform the court of any relevant family violence order. This provision is in exactly
the same terms as section 68J of the existing Act. It has been moved to the new
Subdivision BA in Division 1, Part VII (Children) along with the other provisions in
Subdivision B of Division 10, Part VII (Children) of the existing Act.




                                           18
Section 60CG ­ Court to consider risk of family violence

79. Section 60CG requires the court to ensure, when it makes an order, that the order
is consistent with any family violence order that may be in place; and does not expose
a person to an unacceptable risk of family violence. The court must do so to the
extent that it is possible consistent with the child's best interests remaining the
paramount consideration. Subsection 60CG(2) provides that the court may include in
the order any safeguards that it considers necessary for the safety of those affected by
the order. Section 60CG is in exactly the same terms as section 68K of the existing
Act. It has been moved to the new Subdivision BA in Division 1, Part VII (Children)
along with the other provisions in Subdivision B of Division 10, Part VII (Children)
of the existing Act.

Item 10 ­ Subsection 60G(2)(note)

80. Item 10 is a consequential amendment to the note after subsection 60G(2). The
reference to Division 10 is replaced with a reference to `Sections 60CB to 60CG'.
This amendment is necessary as the relevant provisions dealing with the best interests
of the child have moved from Division 10 to new Subdivision BA in Division 1 of
Part VII.

Item 11 ­ At the end of Division 1 of Part VII

Subdivision E ­ Family dispute resolution

81. Item 11 inserts a new Subdivision E into Division 1 of Part VII of the Act which
is the Part that deals with children. New Subdivision E deals with family dispute
resolution and family counselling. It inserts new section 60I into the Act which
provides for compulsory attendance at family dispute resolution in a range of
circumstances, prior to lodging an application with the court. This is a key change to
encourage a culture of agreement making and avoidance of an adversarial court
system.

82. The object of new section 60I, which is set out in subsection 60I(1), is to ensure
that parties attempt to resolve their disputes about children's matters that can be dealt
with under Part VII of the Act, before commencing a court process. This will assist
people in resolving family relationship issues outside of the court system, which is
costly and can lead to entrenched conflict. This item substantially implements
recommendation 9 of the FCAC Report.

Phases of Commencement

83. There is a staged commencement of the requirement for people to attend a
dispute resolution process before applying for a Part VII order. The three phases are
set out in subsections 60I(2) to (6). The reason for the staged commencement is to
allow for the rollout of the Family Relationship Centres and the increased funding for
dispute resolution services announced in the 2005-06 Federal Budget. This will
ensure there are sufficient dispute resolution services to assist in meeting the demand.



                                           19
This will also allow time for development of a process for accreditation of dispute
resolution practitioners.

84. In order to ensure the quality of services delivered by family counsellors, family
dispute resolution practitioners and workers in Government funded children's contact
services, competency-based accreditation standards are currently being developed by
the Community Services and Health Industry Skills Council (CSHISC). These
standards will form the minimum requirements for family counsellors, family dispute
resolution practitioners and workers in funded children's contact services. Schedule 4
contains a framework for the introduction of the accreditation system.

85. Phase 1 is for proceedings filed from the commencement of this Bill to
30 June 2007. It provides that during this time, people who have a dispute about
matters that may be dealt with by a parenting order must comply with the dispute
resolution procedures relevant to a parenting order that are set out in the Family Law
Rules 2004 (the Rules). Currently, Rule 1.05 provides that before starting a case,
each prospective party to the case must comply with the pre-action procedures, set out
in Part 2 of Schedule 1 of the Rules, which include attempting to resolve the dispute
using dispute resolution methods.

86. This requirement will apply to all courts exercising jurisdiction under the Act,
including the Federal Magistrates Court and State and Territory Courts, with such
modifications as may be necessary, as provided for in subsection 60I(3). For example
there may be different forms used for different steps of the process depending on
which court the matter is being heard in. It is intended that the penalties set out in the
Family Law Rules for non-compliance or unreasonable non-compliance (such as case
management consequences or cost orders) in clause 2 of Part 2 of the Rules will apply
during Phase 1.

87. Phase 2 provides that subsections 60I(7) to (11) will apply to a Part VII order in
relation to a child if the application is made on or after 1 July 2007 and before the
date fixed by Proclamation and none of the parties have applied for a Part VII order in
relation to the child before 1 July 2007. New applicants to the courts are most likely
to benefit from the use of the dispute resolution services, as their disputes may not be
as entrenched as those parties already in the litigation process.

88. Phase 2 increases the number of people the provisions will apply to, but allows
for the continued rollout of Family Relationship Centres. Using a date fixed by
Proclamation to set the limits of Phase 2 allows for necessary flexibility in relation to
the full rollout of the Family Relationship Centres. This responds to recommendation
25 of the LACA Report which reflected concerns that there might be a legislative
obligation imposed on people prior to services being available.

89. Phase 3, in subsection 60I(6), applies subsections 60I(7) to (11) to all
applications for a Part VII order that are made on or after a further Proclamation. At
this stage, all Family Relationship Centres and funding will be rolled out.

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




                                           20
90. Subsection 60I(7) is the key operational provision. It provides that a court cannot
hear an application for an order under Part VII unless the applicant has also filed, with
the application, a certificate by a family dispute resolution practitioner. This
certificate must state that either: (a) as set out in paragraph 60I(8)(a), the applicant did
not attend family dispute resolution due to the refusal or failure of the other party or
parties to attend the process; or (b) as set out in paragraph 60I(8)(b), the applicant
attended family dispute resolution, conducted by the practitioner, with the other party
or parties to the proceedings, at which they discussed and made a genuine effort to
resolve the issue or issues to which the court application relates; or (c) as set out in
paragraph 60I(8)(c), the applicant attended family dispute resolution, conducted by
the practitioner, with the other party or parties to the proceedings, but that the
applicant, the other party or another of the parties did not make a genuine effort to
resolve the issue or issues. For example, a party who sits through a mediation without
making an effort to engage with the mediator or other party.

91. Attendance at family dispute resolution is not required in a number of instances,
which are set out in subsection 60I(9). These exceptions are intended to ensure that
people will not be required to attend family dispute resolution in circumstances that
are inappropriate.

Consent orders

92. Subparagraph 60I(9)(a)(i) provides that family dispute resolution is not required
where a consent order is being sought. This is appropriate as it will mean that people
who can reach agreement without assistance will not have to use the dispute
resolution services if they do not require them.

Application is in response to application of another party

93. Subparagraph 60I(9)(a)(ii) provides that a certificate will also not be required
where an application is being made in response to a Part VII application that another
party has already made in the proceedings. This is to ensure that parties are not
required to attend family dispute resolution in circumstances where an application is
made for procedural or interim orders while the main proceedings are on foot. These
parties would already have generally attended family dispute resolution.

Family violence or child abuse

94. As set out in paragraph 60I(9)(b), attendance at family dispute resolution is not
required where the court is satisfied that there are reasonable grounds to believe that
there has been or would be a risk of abuse of the child if there were to be a delay in
applying for the order, or if there has been or would be a risk of family violence by
one of the parties to the proceedings.

95. `Abuse' in relation to a child and `family violence' are already defined in section
4 of the Act which is the section that sets out the definitions for Part VII of the Act.
The exceptions in paragraph 60I(9)(b) are intended to protect those people who would
be at immediate risk of violence and abuse if there were to be a delay in attending
court. The standard of proof required is an objective test. This means, for example,
that it is not sufficient for the court to be satisfied that a party believes that there


                                            21
would be a risk of family violence if there were to be a delay in applying for the
order. Rather, the court must be satisfied that there are reasonable grounds for this
belief on an objective basis.

Contravention within 12 months

96. Paragraph 60I(9)(c) excludes participation in family dispute resolution in
circumstances where a Part VII order relating to an issue in a current contravention
application is made within the 12 months before the application and the court is
satisfied on reasonable grounds that a person has shown serious disregard for his or
her obligations under that order. This is an objective test. This partially implements
recommendation 23 of the LACA Report as the Committee thought that 6 months was
too short a period.

97. If the contravention relates to orders made over one year ago it is more likely that
the issue can be resolved outside of the court system and attendance at a dispute
resolution provider would be more valuable. It would be unreasonable to delay the
court's consideration of a contravention order, where the contravention is affecting
the original order made relatively recently by the court as the parties would have had
to go through dispute resolution options prior to obtaining the initial orders. This is
also an exception from dispute resolution in the pre-action procedures of the Family
Law Rules 2004 (Rule 1.05(2)).

Urgency

98. Paragraph 60I(9)(d) provides that participating in family dispute resolution is not
required if the application is made in circumstances of urgency. For example, this
may cover an application which is urgent because of an immediate need to protect a
child from physical harm or danger, or an urgent order for the location and recovery
of a child, including cases of child abduction. This is also an exception from dispute
resolution in the pre-action procedures of the Family Law Rules 2004 (Rule 1.05 (2)).

Unable to participate effectively

99. Paragraph 60I(9)(e) excludes a party who is unable to participate effectively in
family dispute resolution. `Unable' is intended to cover a limited set of circumstances
of incapacity or physical remoteness and other such reasons. Examples of such
situations include a person being intellectually impaired, a person addicted to drugs in
such a manner that makes them unable to participate in family dispute resolution in a
normal capacity, or circumstances of geographical distance where attendance by
telephone is not feasible (eg due to hearing loss). A toll free national telephone
advice line staffed by qualified professionals and a new website will be available to
assist families with information or advice on relationship, parenting or separation
issues and also with referrals to other services that can help. The advice line and
website will assist families across Australia, including those who do not feel
comfortable going into or cannot easily access a Family Relationship Centre, to get
helpful information and advice.

100. Paragraph 60I(9)(f) provides a mechanism for further additions to be added to
this list of exceptions as the need for further exceptions becomes recognised, and


                                          22
enables this to be done through the Family Law Regulations 1984. This allows
flexibility to respond to issues that may arise in the implementation of these
significant changes to the family law system. The exceptions to compulsory dispute
resolution do not prevent people who wish to use these services of utilising them prior
to making an application for a court order.

Compliance

101. If a person does not attend family dispute resolution in accordance with this new
section 60I before applying for a Part VII order, for whatever reason, subsection
60I(10) provides that the court must consider making an order that the person attend
such a process. Any such decision will be made at the discretion of the court. For
example, if the applicant has claimed that the application was urgent under the
exception in paragraph 60I(9)(d), but the court considers that it was not urgent, it may
make an order that the parties must attend family dispute resolution before the court
will deal with the matter. The court could also order costs in appropriate cases. This
will discourage parties from trying to avoid the provisions and will ensure that the
court considers the reasons for exemption.

102. Subsection 60I(10) will also allow the court, in appropriate cases, to send a
party to a specific program even if he or she has met an exception where the court
considers that the program will be beneficial. This is consistent with the overall shift
to ensure that all matters that can be resolved outside the court system are.

Validity of proceedings

103. Subsection 60I(11) provides that the validity of proceedings for a Part VII order
and any order made pursuant to those proceedings is not affected by a failure to
comply with the requirement to attend family dispute resolution in subsection 60I(7).
This will prevent technical defects after the court has already considered the case.
This is appropriate if parties have already gone to the trouble and expense of having a
matter heard.

Definition of `dispute resolution provisions'

104. New subsection 60I(12) includes a definition for the term `dispute resolution
provisions' that is used in section 60I for Phase 1 of the provisions, which links back
to the existing Family Law Rules that will now apply to all courts exercising family
law jurisdiction due to the operation of subparagraph 60I(3).

Requirement to see a family counsellor or family dispute resolution practitioner in the
case of child abuse or family violence


105. Item 11 also inserts a new section 60J as part of the new Subdivision E of
Division 1 of Part VII of the Act. New Subdivision E deals with family dispute
resolution and family counselling. The purpose of subsection 60J(1) is to ensure that
people who are not required to attend family dispute resolution where there has been
child abuse or family violence by one of the parties to the proceedings, obtain
information about the services and options that are available to them. This will


                                           23
ensure that people are made aware of services and options (including alternatives to
court action) that are available in circumstances of abuse or violence.

106. To avoid undue delay to people seeking to rely on the family violence or child
abuse exceptions to family dispute resolution and make the process less bureaucratic,
the information will be made available by family counsellors and family dispute
resolution practitioners. An applicant for a Part VII order will be required to indicate
in writing whether they have or have not received the information.

107. New subsection 60J(2) provides an exception to the requirement in section
60J(1) where there is a risk of child abuse or family violence if the matter is delayed
getting to court. While the intention of section 60J(1) is to ensure that victims of
violence have information on the services available to them, the exception is to ensure
that those matters involving high risk of immediate violence or abuse are heard by the
court as soon as possible.

108. New subsection 60J(3) provides that the validity of proceedings for a Part VII
order and any order made pursuant to those proceedings is not affected by a failure to
comply with the requirement to file a certificate in accordance with subsection 60J(1).

109. New subsection 60J(4) provides if a person indicates that they have not received
the information about the other services and options available in circumstance of
abuse or violence and the subsection 60J(2) does not apply, the principal executive
officer of the relevant court must ensure that the person is referred to a family
counsellor or family dispute resolution practitioner to obtain the information.

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

110. Item 11 also inserts a new section 60K as part of the new Subdivision E of
Division 1 of Part VII of the Act. New Subdivision E deals with family dispute
resolution and family counselling. Section 60K places an obligation on the court to
take prompt action in relation to allegations of child abuse or family violence
(particularly as this forms an exception to attendance at dispute resolution). This is an
important provision as where issues of violence and abuse are raised there is a process
in place to ensure that there will be adequate information provided to the court so that
it can make appropriate orders and so that necessary steps can be taken to ensure
appropriate protections are in place.

111. Subsection 60K(1) sets out when the section applies. It applies where an
application is made to a court for a Part VII order in relation to a child and a
document is filed alleging that there has been abuse of a child or family violence by
one of the parties or would be a risk of abuse of a child or family violence by one of
the parties if there were a delay in applying for the order. This provision recognises
that any necessary protection issues are addressed in a timely matter. It also allows
the court to ensure it will have appropriate information about the allegations.

112. In these circumstances, subsection 60K(2) provides that the court must, as soon
as practicable but within a eight week period after the document is filed, consider
what orders (if any) should be made to enable appropriate evidence about the



                                           24
allegation to be obtained as expeditiously as possible and to protect the child or any of
the parties to the proceedings. The provision states that the court should make the
orders if they are appropriate.

113. This will cover allegations that are raised both in applications to the court and in
responses. It will also cover documents other than the initial documents, such as
affidavits, which might be filed later. This would address situations where the issue
of family violence arises during the course of the proceedings. The type of order that
it is envisaged includes orders to ensure that appropriate information is before the
court. This may include orders for a matter to be referred to a State and Territory
agency or that a State or Territory agency provide information or reports. It may also
include orders that a Family Report be prepared or an independent children's lawyer
for the child be appointed.

114. Subsection 60K(3) provides that when considering what order (if any) should be
made under paragraph 60K(2)(b) to enable appropriate evidence about the allegation
to be obtained as expeditiously as possible, one of the matters the court must consider
is whether it should make orders under new section 69ZW to obtain reports from
State and Territory agencies in relation to the allegations. Section 69ZW is a new
section inserted by Schedule 3 which allows the court to make an order requiring a
prescribed State or Territory organisation to provide the court with documents or
information it may have about notifications and investigations of child abuse or
family violence affecting the child. The types of organisations that would be
prescribed would include those that have investigative power into family violence and
abuse issues, such as child protection agencies and police departments.

115. The intention is to ensure that the court has as much relevant information as
possible when making a determination about what is in the best interests of the child.
Subsection 60K(3) does not limit subparagraph 60K(2)(a)(i) and the court may make
other orders under that subparagraph as it considers appropriate.

116. Subsection 60K(4) provides that when considering what order (if any) should be
made under subparagraph 60K(2)(a)(ii) to protect the child or any of the parties to the
proceedings, the court must consider whether orders should be made or an injunction
granted under section 68B. Section 68B sets out the types of orders and injunctions
the court may make for the welfare of a child. Subsection 60K(4) does not limit
subparagraph 60K(2)(a)(ii) and the court may make other orders under that
subparagraph as it considers appropriate.

Item 12 ­ At the end of subsection 61C(1)

117. Item 12 contains a series of notes to be included at the end of subsection 61C(1).
Subsection 61C(1) states that in the absence of court orders each parent of a child
who is not 18 has parental responsibility for the child. The notes are to assist in
clarifying the meaning of the section and to act as signposts directing the reader to the
various relevant provisions in the Act. For example, note 1 directs readers to
subsections 61C(3) and 61D(2) for the effect of a parenting order.

118. Note 2 directs readers to section 61DA for the presumption that the court applies
when making a parenting order. Note 3 directs readers to section 63C in relation to


                                           25
parenting plans. The notes highlight the difference between parental responsibility in
cases where there are no parenting orders and in cases where parenting orders are
required.

Item 13 ­ After section 61D

119. Item 13 inserts new provisions relating to a presumption, or starting point, about
equal shared parental responsibility when making a parenting order. The new
provisions can be distinguished from the principle of parental responsibility set out in
section 61C which applies where there are no parenting orders. The new provisions
implement recommendations 1 and 2 of the FCAC Report and recommendations 1
and 3 of the LACA Report.

120. The Government considers that it is important to ensure that a child has a
meaningful relationship with both parents and that both parents participate in
decisions about the child. The presumption of equal shared parental responsibility is
not a presumption of 50:50 joint custody. The presumption relates solely to the
decision making responsibilities of both parents. New section 65DAA inserted by
item 31 is the provision dealing with the time a child spends with each parent and the
circumstances where the court should consider equal time arrangements.

121. New section 61DA, applies to a court making a parenting order. The
presumption provides that it is in the best interests of the child that the parents share
equally the parental responsibility for the child. The provision is intended to promote
decision making about major long-term issues by both parents, for the benefit of the
child.

122. The note after section 61DA aims to assist readers and, in particular, self-
represented litigants, by highlighting that the presumption of equal shared parental
responsibility relates solely to the decision making responsibilities of both parents and
does not relate to the amount of time the child spends with each parent.

123. New subsection 61DA(2) states that the presumption will not apply if the court
reasonably believes that a parent of a child, or a person who lives with a parent of the
child, has engaged in family violence or abuse of the child (or another child who is a
member of the parent's family). The extension of this provision to a person who lives
with a parent is intended to address concerns about the impact that violence and abuse
in the home of either parent can have on the child and on the ability to exercise the
joint decision making requirement of equal shared parental responsibility.

124. The provision is limited to a parent who has committed abuse of the child (or a
child who is a member of the parent's family) so as not to exclude a parent who had
committed sexual assault against some other person at an earlier stage from
participating in decision making. Where there may be risks to the child, the
presumption can be rebutted under new subsection 61DA(4).

125. New subsection 61DA(3) provides that the presumption of equal shared parental
responsibility will apply at an interim hearing, unless the court considers that it is
inappropriate for the presumption to apply. This implements recommendation 15 of




                                           26
the LACA Report. This discretion is appropriate given the limited evidence that may
be available for interim hearings.

126. New subsection 61DA(4) provides that the presumption will be able to be
rebutted where its application would not be in the best interests of the child. For
example, where there are no issues of violence or abuse but a parent is addicted to
drugs in such a manner that he or she is unable to make decisions for the benefit of
the child or has a mental illness that similarly affects the capacity to share decision
making. This is appropriate as under section 60CA the court must regard the best
interests of the child as the paramount consideration in deciding whether to make a
particular parenting order in relation to a child.

127. New section 61DB provides that, when making a final parenting order, the court
must disregard the allocation of parental responsibility established after an interim
hearing. The purpose of this provision is to address concerns about the potential
difficulty of displacing a status quo related to parental responsibility that may be
established at an interim hearing. This implements recommendation 15 of the LACA
Report.

128. The provision is not intended to prevent the court from taking into consideration
any of the evidence on which the interim parenting orders were based. Under section
60CA the court must regard the best interests of the child as the paramount
consideration in deciding whether to make a particular parenting order in relation to a
child.

129. `Family violence' and `abuse' in relation to a child are already defined in
section 60D of the existing Act which is the definitions section for Part VII. These
provisions are moved to the general definitions section in subsection 4(1). The family
violence definition is amended by item 3 to include the concept of `reasonableness'.
This implements recommendation 9 of the LACA Report.

Item 14 ­ At the end of Division 2 of Part VII

130. Item 14 inserts new section 61F into the Act. It provides that, in applying Part
VII to the circumstances of an Aboriginal or Torres Strait Islander child or identifying
a person/s that has or may exercise parental responsibility for such a child, the court
must have regard to any kinship obligations and child-rearing practices of Aboriginal
and Torres Strait Islander culture that are relevant to the child. The definitions of the
terms `Aboriginal child', `Torres Strait Islander child' and `Aboriginal or Torres
Strait Islander culture', are inserted into the general dictionary in subsection 4(1) of
the Act by items 1, 2 and 6 of Schedule 1.

131. New section 61F implements recommendation 1 of the Family Law Council's
December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait
Islander Child-Rearing Practices: Response to Recommendation 22: Pathways
Report, Out of the Maze. The purpose of this provision is to ensure that the unique
kinship obligations and child-rearing practices (such as the involvement of extended
family) of Aboriginal and Torres Strait Islander culture are recognised by the court
when making decisions about the parenting of an Aboriginal or Torres Strait Islander




                                           27
child. This provision is consistent with other amendments to facilitate greater
involvement of extended family members in the lives of children.

Item 15 ­ After subsection 62G(3)


132. Item 15 inserts two new subsections into section 62G. This provides for the
court to direct a family consultant or welfare officer to give the court a report on
matters relevant to the proceedings. Family consultant is defined in Schedule 4.

133. New subsection 62G(3A) provides that a family consultant or welfare officer
who is directed to give the court a report on a matter must ascertain the views of the
child in relation to the matter and include the views of the child in the report. New
subsection 62G(3B) provides that subsection 62G(3A) does not apply if it would be
inappropriate to do so because of the child's age or maturity or some other special
circumstance. For example, if the child has a disability which makes them unable to
express a view, or is a baby.

134. The intention is to ensure that, where possible, the court is informed about the
views of the child on matters to which a parenting order relates. The child's views
are a factor a court is to consider when determining what is in the child's best
interests under section 60CC. This implements recommendation 42 of the LACA
Committee. The note following this provision makes clear that the requirement to
seek the views of achild is subject to section 68H which makes clear that a child
cannot be forced to give a view.

Item 16 ­ After paragraph 63C(1)(b)

135. Item 16 amends subsection 63C(1) which defines what a parenting plan is.
Under the existing Act, a parenting plan is a written agreement made between the
parents of a child dealing with the issues set out in section 63C(2). The amendment
adds two additional requirements to what will constitute a parenting plan.

136. Paragraph 63C(1)(ba) requires the parenting plan to be signed by the parents of
the child. Paragraph 63C(1)(bb) requires the parenting plan to be dated. This is
appropriate given that under new section 64D (inserted by item 25) a parenting plan
entered into after a parenting order is made may render the parenting order
unenforceable. The requirement to sign and date a parenting plan will emphasise the
significance of the document. This partially implements recommendation 33 of the
LACA Committee.

137. Paragraph 63DA(2)(d) inserted by item 18 ensures that people are advised about
the effect of entering into a parenting plan when they are using the services of an
adviser.

Item 17 ­ Subsection 63C(2)

138. Section 63C deals with the meaning of parenting plans. Item 17 facilitates the
removal of the terms `residence' and `contact' from the Act by replacing the current




                                           28
subsection 63C(2), which specifies that residence and contact between the child and
the parent is one of the matters that a parenting plan may deal with.

139. Item 17 inserts a new subsection 63C(2), which sets out the details of what
issues a parenting plan may deal with. This includes with whom a child is to live, the
time a child is to spend with a nominated person or persons, the allocation of parental
responsibility (including decisions about major long-term issues in relation to a child
­ see subsection (2B)), the communications a child is to have with a nominated
person or persons (see subsection (2C)), child maintenance, the form of consultations
about parental decisions and any other aspect of the care, welfare or development of
the child.

140. In particular, new paragraphs 63C(2)(g) and (h) provide that a parenting plan
may deal with the process for resolving disputes about the terms or operation of the
plan and the process to be used for changing the plan. The intention of these
paragraphs is to ensure that parents consider the changing needs of their child or
children as they get older and to work an element of flexibility into the plan. The aim
of these paragraphs is to attain a greater level of compliance with parenting plans.

141. The note in subsection 63C(2) is designed to assist those using the Act, in
particular, self-represented litigants, who may not otherwise be aware that this
provision only relates to the maintenance of a child where the Child Support
(Assessment) Act 1989 does not apply. The note explains that a parenting plan that
deals with child maintenance in circumstances where the child support provisions of
the Child Support (Assessment) Act 1989 apply, has no effect (see subsection 63G(5)
of the Act) unless it is a child support agreement for the purposes of the child support
legislation (see section 63CAA of the Act).

142. Item 17 also gives greater recognition to the important role that grandparents
and other relatives play in a child's life. In particular, subsection 63C(2A)
specifically provides that a parenting plan may provide for a child spending time with
or communicating with the grandparent or other relative of a child. This change is
consistent with the amendments to recognise the need to consider the benefit to the
child of greater involvement of extended family members.

143. Subsection 63C(2B) clarifies that a parenting plan may deal with the allocation
of parental responsibility for making decisions about major long-term issues in
relation to a child. The definition of `major-long term issues' is inserted into section
60D(1) by item 4.

144. The addition of subsection 63C(2C) provides greater clarity about what `other
communication' means in paragraph 63C(2)(e). The two examples it gives, which are
examples only and do not limit the scope of `other communication', are letters and
telephone, email or any other electronic means. The intention is for parents to
consider a variety of ways by which they can have a meaningful involvement in their
children's lives, not just physical time with a child. This might include SMS, video
hook-ups or attending sporting or social events their child is involved in.




                                           29
Item 18 ­ Section 63DA

145. Item 18 replaces the existing section 63DA. It sets out the obligations of
advisors (ie. legal practitioners, family counsellors, family dispute resolution
practitioners and family consultants) when giving advice to people in relation to
parenting plans. It aims to assist people making parenting plans to understand what
the plan may include, the effect of the plan and the availability of programs to assist
people who experience difficulties with their agreements or who need to negotiate a
change in an agreement. This is a key provision and ensures that people are well
informed and supported towards making an agreement about post-separation
parenting. It is intended that as part of the package of reforms to the family law
system that brochures and information materials will be developed. These will
present the information required to be provided in a simple and easily understood
form. This will assist advisers in fulfilling their obligations under this provision.

146. Ensuring that people are appropriately informed about parenting plans is part of
the cultural shift to have cooperative, child-focussed parenting take place outside of
the adversarial court system. It will be important to ensure that parents understand
that the parenting plan is not enforceable but that if the agreement later breaks down it
might be relevant to court orders. It will also be important that parents understand
that the effect of a parenting plan made after court orders may be that formal court
orders will be subject to the later parenting plan. This is due to the operation of new
subsection 64D inserted by item 25.

147. New subsection 63DA(1) places an obligation on advisors assisting or advising
people about parental responsibility following the breakdown of a relationship to
inform them that they could consider entering into a parenting plan and the services
available where they can get further assistance to develop a plan. This will make
people aware of the option and the advantages to each party of a cooperative
approach.

148. New subsection 63DA(2) sets out the obligations that advisers must meet when
advising people about the making of a parenting plan.

149. Paragraph 63DA(2)(a) places an obligation on advisors to inform people that,
where it is in the best interests of the child and reasonably practicable, they could
consider as an option an arrangement where they equally share the time spent with the
child. Equal time arrangements are most likely to work in situations where there is a
high degree of cooperation between the parents.

150. Paragraph 63DA(2)(b) places an obligation on advisers to inform the people that
if an equal time arrangement is not appropriate, they could consider whether an
arrangement where the child spends substantial and significant time with each person
would be in the best interests of the child and reasonably practicable. Subsection
63DA(4) makes it clear what substantial and significant time means and that it
includes a variety of days including days that fall on weekends and holidays and other
days. It ensures that both parents can participate in a child's routine and in events of
significance to the child such as sporting events, birthdays, or concerts. It would also




                                           30
ensure that the child is able to participate in events significant to the parents such as
birthdays or father's or mother's day.

151. Paragraph 63DA(2)(c) emphasises that decisions made by parties in developing
parenting plans should be made in the best interests of the child. In this context the
term should not be read in a technical way. The mediator doesn't have to consider
every aspect of the legal considerations that the court must consider. This is
consistent with recommendation 6 of the LACA Report.

152. Paragraph 63DA(2)(d) ensures that when giving advice to people about a
parenting plan, advisors inform them of the matters that may be dealt with in a
parenting plan in accordance with subsection 63C(2). As noted above at item 17,
section 63C(2) sets out the issues a parenting plan may deal with. For example, with
whom a child is to live, the time a child is to spend with a nominated person or
persons, the allocation of parental responsibility and the process for resolving
disputes about the plan.

153. New paragraphs 63DA(2)(e) and 63DA(2)(h) ensure that advisors explain the
interaction between parenting plans and parenting orders. Subparagraph 63DA(2)(e)
requires advisors to inform their clients that an existing parenting order may be
subject to a parenting plan that they subsequently enter into. This is due to the
operation of new subsection 64D inserted by item 25. Advisors must also inform
their clients that the court is required (in section 65DAB at item 31) to consider the
terms of the most recent parenting plan about a child when making a parenting order
about that child, if it is in the best interests of the child to do so.

154. New paragraph 63DA(2)(f) requires advisors to inform their clients that it is
desirable to include in a parenting plan provisions of the kind referred to in
paragraphs 63C(2)(d), (g) and (h). These paragraphs deal, respectively, with the form
of consultations between the parties to the plan, the process for resolving disputes
about the terms or operation of the plan and the process to be used for changing the
plan. The intention of these paragraphs is to help people avoid having to take
parenting matters to court by ensuring that when making a plan, they consider how
they will consult with one another, resolve disputes and make changes to the plan as
their child grows older and their needs change.

155. New paragraph 63DA(2)(g) requires advisors to explain to their clients what
programs are available to help people who experience difficulties in complying with
parenting plans.

156. The note at the end of subsection 63DA(2) makes clear that an adviser must
only inform people that they could consider the options of the child spending equal
time and substantial and significant time with each person. It does not require the
adviser to provide legal advice as to whether such arrangements are practicable or in
the best interests of the child. However, the adviser may provide advice if that is
appropriate.

157. New subsections 63DA(3) and (4) explain what is meant by substantial and
significant time. It ensures that the focus is not just on the amount of time that each
parent spends with the child but also on the type of time that is spent. The definition



                                            31
is to encourage people to ensure that there is a mix of holidays, weekends and other
days and that both parents are able to participate in the child's daily routine and in
events that are significant to the child (like sporting events, birthdays and concerts).
It also ensures that the child is able to participate in events significant to the parent
such as mother's or father's day, extended family weddings or christenings and
birthdays.

158. New subsection 63DA(5) provides that for the purposes of this particular
section, `adviser' means a person who is a legal practitioner, a family counsellor, a
family dispute resolution practitioner, or a family consultant.

159. It is envisaged that the information relating to parenting plans that advisers are
required to provide under this section could be provided in written form such as
brochures.

Item 19­ Paragraph 63E(3)(b)

160. Item 19 amends paragraph 63E(3)(b) of the Act. Section 63E concerns the
registration and revocation of parenting plans. The system for the registration of
parenting plans was removed in 2003 by the Family Law Amendment Act 2003. The
amendment to paragraph 63E(3)(b) is to refer to subsections 60CC(2) and (3), rather
than subsection 68F(2) about best interests. This is a consequential amendment that
reflects section 60CC at item 9, which sets out the primary and additional
considerations for the court in determining a child's best interests.

Item 20 ­ Subsection 63F(6) (note)

161. Item 20 is a consequential amendment to the note at the end of the provisions
about the enforcement of child welfare provisions in parenting plans. This is
necessary as the provisions relating to the best interests of the child have moved from
subsection 68F(2) to section 60CC by item 9.

Item 21 ­ Subsection 63H(2) (note)

162. Item 21 is a consequential amendment to the note at the end of the provisions
about the courts powers to discharge or vary registered parenting plans. This is
necessary as the provisions relating to the best interests of the child have moved from
subsection 68F(2) to section 60CC by item 9.

Item 22 ­ Subsection 64B(2) to (4)

163. Item 22 repeals and replaces subsection 64B(2), which currently specifies
contact as a matter that can be dealt with by a parenting order, subsection 64B(3),
which refers to a `residence order', and subsection 64B(4) which refers to a `contact
order'. These terminology changes are necessary due to the removal from the Act of
references to contact, residence and specific issues orders. This is consistent with
recommendation 4 of the FCAC Report that this terminology be removed from the
Act.




                                            32
164. New subsection 64B(2) provides greater detail and clarity about the matters that
a parenting order can deal with. These matters include who a child is to live with, the
time and other communications the child is to have with another person or persons,
the allocation of parental responsibility and the form of consultations persons with
parental responsibility are to have with one another. In particular, paragraph
64B(2)(g) provides that a parenting order may deal with the steps that should be taken
before an application is made to a court for a variation of the order. Paragraph
64B(2)(h) provides that a parenting order may deal with the process to be used for
resolving disputes about the terms or operation of the order. The aim is to ensure
orders are appropriately framed and flexible to reduce the need for people to go to
court about the operation or variation of parenting orders.

165. New subsection 64B(3) clarifies that a parenting order dealing with the
allocation of parental responsibility under paragraph 64B(2)(c) may deal with the
allocation of responsibility for making decisions about major long-term issues in
relation to the child. Major long term issues are defined in item 4. This provision is
not intended to limit other matters that paragraph 64B(2)(c) may cover.

166. New subsection 64B(4) sets out what the reference to other communications in
paragraph 64B(2)(e) includes. This is drafted broadly and is intended to cover new
technologies brought about by, for example, the internet, mobile phones and other
electronic devices.

167. New subsection 64B(4A) provides that an option under paragraphs 64B(2)(g)
and (h), is for a parenting order to require people to consult with a family dispute
resolution practitioner to assist with resolving any dispute about the terms or
operation of the order or about coming to agreement about changing the order. This
subsection is not intended to limit other matters that paragraphs 64B(2)(g) and (h)
may cover.

168. Item 22 gives greater recognition to the important role that grandparents and
other relatives play in a child's life and to the benefits to a child of continued contact
with these significant people. In particular, subsection 64B(2) specifically provides
that a parenting order may provide for a child spending time with or communicating
with the grandparent or other relative of a child. This change is consistent with the
amendments to facilitate greater involvement of extended family members in the lives
of children.

Item 23 ­ Subsection 64B(5)

169. Item 23 amends subsection 64B(5) of the Act. Subsection 64B(5) explains what
constitutes a child maintenance order. The amendment is to refer to paragraph
64B(2)(f) rather than paragraph 64B(2)(c). This is a consequential amendment which
reflects the inclusion of additional matters in subsection 64B(2) which sets out the
matters a parenting order may deal with.

Item 24­ Subsections 64B(6) to (8)

170. Item 24 repeals the current subsection 64B(6) in the Act, which provides for
what are called `specific issues orders'. This is a subsequent amendment to the


                                           33
removal of the terminology of residence and contact. As references to residence and
contact orders are repealed, so too are references to specific issues orders. Instead,
there is a more generic approach to parenting orders. Specific issues orders are
replaced with parenting orders dealing with allocation of parental responsibility and
components of parental responsibility. The new subsection 64B(6) describes the
types of parenting orders that can be made in favour of a person.

171. Item 24 also repeals subsection 64B(7), which describes whom a residence,
contact or specific issues order is made in favour of. The definition is no longer
required as the terminology of the Act is updated by replacing the references to a
residence order, a contact order and a specific issues order with references to
parenting orders that provide with whom a child is to live, spend time, communicate
or that allocate parental responsibility or a component of parental responsibility.

172. Item 24 also repeals subsection 64B(8), which defines `has' in relation to
residence, contact and specific issues orders. This terminology is no longer relevant.

Item 25 ­ At the end of Division 5 of Part VII

173. Item 25 inserts a new section 64D into Division 5. Section 64D inserts a default
provision into parenting orders that are made after the commencement of this Bill.
The default provision has the effect that those parenting orders will be subject to any
subsequent parenting plan. This will only be the case where the parenting plan is
agreed to in writing by any other person to whom the parenting order applies.

174. There is discretion for the court not to include the default provision in the
parenting order in exceptional cases. This would be the case where the court has
concerns that a later parenting plan would not be made in the best interests of the
child. For example, a court may consider that it is in the best interests of a child to
reside with his or her grandparents, as both parents have substance abuse issues. The
court may exercise its discretion to make an order that can only be changed by the
subsequent order of the court and not by a subsequent parenting plan. The court may
do so due to concerns that the parents may attempt to use a parenting plan to override
the court order and provide for the child to live with them, rather than the
grandparents. It is appropriate for the court to have this discretion in order to ensure
that the best interests of the child remain paramount.

175. The requirement that this be limited to exceptional cases implements the LACA
Committee recommendation 34. This reflects a desire that generally people should be
encouraged to vary existing parenting orders by agreement using the new services that
will be available.

176. Section 64D does not mean that the parenting plan itself is enforceable
(parenting plans have no legal enforceability), but it does mean that after the
commencement of this Bill, where this default provision is included in the parenting
order, there will no longer be a right to enforce the previous court order to the extent
that it is inconsistent with the new parenting plan. People can only lose the capacity
to enforce their existing parenting order within the court system if they agree to this in
writing in a parenting plan. The insertion of paragraph 63DA(2)(d) by item 18




                                           34
ensures that people are advised about the effect of entering into a parenting plan when
they are using the services of an adviser.

177. Provisions relating to the effect of parenting plans are also contained in
Schedule 2 about contravention applications.

Item 26 ­ Section 65A

178. This is a consequential amendment to the provision in Subdivision A of
Division 6 of Part VII of the Act which describes that the Division is about parenting
orders other than child maintenance orders. The change is necessary due to the
additional note added by Item 27 below.

Item 27 - At the end of section 65A

179. Section 65A sets out what Division 6 of Part VII does. This Division is
concerned with applying for parenting orders and the obligations parenting orders
create. Item 27 inserts a note to indicate that there is a new provision in this Division,
section 60I, inserted by item 11 that provides that parties should participate in family
dispute resolution before applying for a parenting order. This should assist in
highlighting the provisions for self-represented litigants and help make it clear that
parenting orders cannot be applied for unless parties have attempted family dispute
resolution.

Item 28 ­ Section 65AA

180. This item repeals the existing subsection that provides information about the
three stage parenting compliance regime. That information is no longer required due
to the changes to compliance in Schedule 2. A new provision is included which is a
signpost back to section 60CA in Division 1 (inserted by item 9). This signpost
makes it clear that when making parenting orders the best interests of the child are
paramount.

Item 29 ­ Subsection 65D(1)

181. Section 65D provides the court with the necessary power to make a parenting
order. Item 29 clarifies subsection 65D(1) by inserting a requirement that, in making
a parenting order, the court should have regard to the presumption of equal shared
parental responsibility and any parenting plans (sections 61DA and 65DAB
respectively).

Item 30 ­ Subsection 65D(2)

182. Section 65D provides the court with the necessary power to make a parenting
order. Item 30 amends subsection 65D(2) by inserting a requirement that, in
discharging, varying, suspending or reviving a parenting order, the court should have
regard to the presumption of equal shared parental responsibility and parenting plans
(sections 61DA and 65DAB respectively). This provides a link for the court with the
sections relating to the presumption. It will also aid people using the Act, in
particular, self-represented litigants in understanding the operation of the provisions.


                                           35
Item 31 ­ After section 65D

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

183. Section 65DAA is a new provision about circumstances where the court is to
consider children spending either equal and if not equal then substantial and
significant time with both a child's parents.

184. Subsection 65DAA(1) implements recommendations 4 and 5 of the LACA
Committee. It provides a new requirement that the court must consider making an
order that a child spend equal time with each parent, if a parenting order provides or
is to provide the parents with equal shared parental responsibility for the child. This
provision is not a presumption 50:50 of joint custody. That approach was rejected by
the FCAC. The court must consider whether it is in the best interests of the child and
reasonably practicable for the child to spend equal time with the parents.

185. Subsection 65DAA(2) recognises that an equal time arrangement will not be
appropriate in some cases but that the court must consider other arrangements that
promote a meaningful relationship. This provision places an obligation on the court in
situations where there is equal shared parental responsibility and equal time is not
appropriate, to consider whether it would be in the best interests of the child and
reasonably practicable for the child to spend substantial and significant time with both
parents. This is intended to ensure that in making parenting orders related to time that
the court focuses not just on the substantial quantity of time that is spent with each
parent, but also on the significant type of time. The note in this section emphasises
that the best interests of the child remain the paramount consideration for parenting
orders. This is set out in section 60CA by item 9.

186. Subsection 65DAA(3) makes it clear that substantial and significant time
requires that the child spend both some time on weekends and holidays and some time
on other days. It must also include time in daily routine and allow for participation in
events that are significant to the child. This might include sporting events, birthdays
or concerts. It would also include the child being able to be involved in events of
significance to the parent such as family weddings or christenings, mother's or
father's day, birthdays.

187. Subsection 65DAA(4) makes it clear that the court can have regard to other
things when deciding what is substantial and significant time. This will allow the
court flexibility in determining for each unique case in the best interests of the child
to determine what the significant events are for that child and parent and what would
constitute substantial time. For some children it may include things related to
religious or cultural events.

188. Section 65DAA(2)-(4) is intended to ensure that the courts consider
arrangements that are much more than `one weekend a fortnight and half of the
holidays' or an 80:20 arrangement. It is intended to ensure a focus both on the
amount of time and the type of time. It would include both day time contact and night
time contact. It recognises that what is important is that the focus be on ways that


                                           36
both parents are able to develop a meaningful relationship with their children and
share important events including everyday time with the child. It recognises that in
order to have a meaningful relationship and to share equal shared parental
responsibility that this will generally involve `both' parents spending both substantial
and significant time with their children.

189. Subsection 65DAA(5) sets out factors that the court should consider in
determining whether both equal or substantial and significant time are reasonably
practicable. These factors originate from case law, including the case of T and N
(2001) FMCAfam 222. The inclusion of the factors was recommended by the Family
Law Council which considered 2004 research by the Australian Institute of Family
Studies entitled, Research Report No 9: Parent-Child Contact and Post Separation
Parenting Arrangements.

190. Paragraph 65DAA(5)(a) provides that the court consider the proximity of the
residence of the parents. It will obviously be less practical to share care in situations
where the parents live in different countries or large distances away from each other.

191. Paragraph 65DAA(5)(b) is the parent's ability, including an assessment of their
future ability, to implement the logistical issues associated with shared care. For
example, what would the parents do if the child leaves homework at one house? Will
the parents readily rectify this problem? The court may decide to make some related
orders to send the parties to a program to assist them develop or improve these skills.
Note 2 to the provision is a cross reference to this option.

192. Paragraph 65DAA(5)(c) refers to the parents current and future capacity to
communicate and resolve difficulties. This may include a variety of issues including
religious adherence, cultural identity, extra curricula activities of the child, methods
of discipline, attitude to homework, health and dental care, diet and sleeping patterns.

193. Paragraph 65DAA(5)(d) ensures that there is a child focus to the decision and
ensures that account is taken of the child's age, views (including factors that may
have influenced those views) and the general benefit to the child of this type of
arrangement.

Section 65DAB ­ Court to have regard to parenting plans

194. New section 65DAB is inserted to provide that when making parenting orders
the court should consider the terms of the most recent parenting plan that may have
been entered into by the parents about the child. The intention is that this provision
will mostly be used in situations where, prior to entering the court system, parents
have agreed on a parenting plan that breaks down and parenting orders are required
(because the plan itself is unenforceable). It may also be relevant, where due to the
effect of section 64D, a previous parenting order has become unenforceable and the
parents now come before the court to seek new parenting orders.

195. The provision will give the court the benefit of information about the types of
arrangements that the parents have previously considered when the court is making
parenting orders. The court is still required to make a decision in the best interests of
the child but information about the agreement may assist the court in considering the



                                           37
appropriate parenting orders to make. The court is not bound by any previous
agreement.

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

196. New section 65DAC provides a rule that where parental responsibility is to be
shared in relation to a major long-term issue under a parenting order, this means that
decisions should be made jointly. This clarifies for parents or others who may have
parental responsibility, what exercising shared parental responsibility actually
involves. This will ensure that both parents have a meaningful involvement in the
child's life. This does not only apply in situations where parents are sharing exactly
equal responsibility. In all cases where there is some sharing of responsibility then
consultation, then discussion about major long-term issues is required for those parts
of responsibility that are shared.

197. New subsection 65DAC(2) contains a note which explains that there is no need
to consult about decisions unrelated to the major long-term care welfare and
development issues, while the child is spending time with a particular person. This is
further explained by section 65DAE. The intention is to make clear that while a child
is with a parent, that parent takes responsibility for the child. This is intended to
reduce litigation about minor details.

198. New subsection 65DAC(3) specifies that in the context of making decisions
jointly, consultation between those persons and making a genuine effort to come to a
decision is required. This will allow a party to seek to enforce a parenting order in
circumstances where there has been no genuine attempt to consult.

199. When a decision about a major long-term issue is communicated to another
person (who does not share parental responsibility) by a party with a share in parental
responsibility, new subsection 65DAC(4) clarifies that section 65DAC does not
require that person to establish that the decision has been made jointly. The purpose
of this section is to ensure that third parties, for example schools, do not have to
establish whether a decision has been made jointly between parties.

200. New section 65DAC outlines the decision making responsibility when a major
long-term issue needs to be decided. These provisions are important to give meaning
to the sharing of decisions about long term issues. They recognise the benefit to the
child generally where both parents play a role in their life. The provisions also
encourage a cooperative approach to parenting and, it is hoped, less adversarial court
proceedings. Schedule 3, which provides for a less adversarial approach to be
adopted in all child-related proceedings under the Act, will assist in achieving this
aim.

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

201. New section 65DAE provides a new rule that where a child is spending time
with a person under a parenting order, there is no need to consult about decisions that
are unrelated to the major long-term care, welfare and development issues. The note
to the section highlights the fact that this would include issues such as what the child


                                           38
eats or wears on a particular day. This is intended to emphasise the types of decisions
covered by the section and reduce levels of conflict and litigation about minor issues.

202. Section 65DAE will be contestable in court. A person may disagree with a
decision that has been made by the person that the child is spending time with. For
example, a parent who is spending time with the child feeds the child in a manner that
is inconsistent with the child's religious upbringing. Although what a child eats is not
usually a major long-term issue, a child's religious upbringing is defined as a major
long-term issue in item 4.

203. In the event that parties are unable to resolve this issue themselves, the parties
will be required to attend family dispute resolution to discuss the issue before an
application can be made to a court. The Government does not expect this provision to
lead to an increase in litigation. The establishment of Family Relationship Centres
and expansion of other counselling, mediation and similar services will assist parties
to resolve such issues themselves and to reach agreement in a non-adversarial and
cost-effective manner.

Item 32 ­ Section 65E

204. Item 32 repeals the existing section 65E which provides that the court must
regard the best interests of the child as the paramount consideration in deciding
whether to make a particular parenting order. This principle is inserted by item 9 as
new section 60CA in new Subdivision BA in Division 1, Part VII (Children). The
intention is to increase the visibility and emphasis of this important provision. This is
consistent with recommendation 16 of the LACA Committee.

Item 33 ­ Paragraph 65G(2)(a)

205. Item 33 removes the requirement in section 65G that grandparents and other
relative carers must obtain a family report for the consideration of the court where an
order relating to where the child lives is being made with the consent of all the parties
to the proceedings and that order is in favour of a person who is a grandparent or a
relative. This change is made as a result of the Family Law Council's Quarterly
report to the Attorney-General and the Family Law Council meeting in Hobart on 10-
11 March 2005 to discuss grandparents and extended families in the family law
system.

206. Removing this requirement is consistent with the amendments to facilitate
greater involvement of extended family members in the lives of children and to
recognise the needs of all children to maintain a connection with their culture. It is
also consistent with recommendation 4 in the Family Law Council's December 2004
Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-
Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the
Maze.

207. New paragraph 65G(2)(a) requires only that the parties to the proceedings attend
a conference with a family consultant to discuss the matter to be determined by the
proposed order. This is important so that the parties understand the effect of the




                                           39
orders and can be referred to appropriate support services. The court continues to
have discretion to order a family report if necessary.

Item 34 ­ Subsection 65L(2) (note)

208. Item 34 is a consequential amendment to the note after subsection 65L(2).
Subsection 65L(2) provides that the best interests of the child is the paramount
consideration when the court is considering making an order for a family and child
consultant to supervise or assist a parenting order. The reference in the note to
Division 10 is replaced with a reference to sections 60CB to 60CG. This amendment
is necessary as the relevant provisions dealing with how the court determines the best
interests of the child have moved from Division 10 to new Subdivision BA in
Division 1 of Part VII.

Item 35 ­ Subsection 65LA(2)(note)

209. Item 35 is a consequential amendment to the note after subsection 65LA(2).
Subsection 65LA(2) provides that the best interests of the child is the paramount
consideration when the court is considering making an order for a party to attend a
post-separation parenting program. The reference in the note to Division 10 is
replaced with a reference to sections 60CB to 60CG. This amendment is necessary as
the relevant provisions dealing with how the court determines the best interests of the
child have moved from Division 10 to new Subdivision BA in Division 1 of Part VII.

Item 36 ­ Section 67L (note)

210. Item 36 is a consequential amendment to the note after section 67L. Section
67L provides that the best interests of the child is the paramount consideration when
the court is deciding whether to make a location order in relation to a child. The
reference in the note to Division 10 is replaced with a reference to sections 60CB to
60CG. This amendment is necessary as the relevant provisions dealing with how the
court determines the best interests of the child have moved from Division 10 to new
Subdivision BA in Division 1 of Part VII.

Item 37 ­ Section 67V (note)

211. Item 37 is a consequential amendment to the note after section 67V. Section
67V provides that the best interests of the child is the paramount consideration when
the court is deciding whether to make a recovery order in relation to a child. The
reference in the note to Division 10 is replaced with a reference to sections 60CB to
60CG. This amendment is necessary as the relevant provisions dealing with how the
court determines the best interests of the child have moved from Division 10 to new
Subdivision BA in Division 1 of Part VII.

Item 38 ­ Subsection 67ZC(2)(note)

212. Item 38 is a consequential amendment to the note after subsection 67ZC(2).
Subsection 67ZC(2) provides that the best interests of the child is the paramount
consideration when the court is deciding whether to make an order relating to the
welfare of children under subsection 67ZC(1). The reference in the note to Division


                                          40
10 is replaced with a reference to sections 60CB to 60CG. This amendment is
necessary as the relevant provisions dealing with how the court determines the best
interests of the child have moved from Division 10 to new Subdivision BA in
Division 1 of Part VII.

Item 39 ­ Subsection 69ZH(2)

213. Item 39 is a consequential amendment to add a reference to new Subdivision
BA of Division 1 (which deals with how the court determines the best interests of the
child) to subsection 69ZH(2). Subsection 69ZH(2) provides information on the
additional application of Part VII. This amendment is necessary as the relevant
provisions dealing with how the court determines the best interests of the child have
moved from Division 10 to new Subdivision BA in Division 1 of Part VII.

Item 40 ­ Subsection 117(1)

214. Item 40 amends subsection 117(1) which states the general principle is that each
party to proceedings under the Act must bear his/her own costs. This general
principle is subject to the provisions set out in sub-section 117(2) and section 118.
The amendment is a consequential amendment which provides that this general
principle is also subject to new provision section 117AB.

Item 41 ­ After section 117AA

215. Item 41 inserts a new provision section 117AB after section 117 which is the
section that deals with costs. The new provision provides that a court must order a
party to pay some or all of the costs of another party, or other parties to the
proceedings, where the court is satisfied that that party has knowingly made a false
allegation in the proceedings. This provision implements recommendation 10 of the
LACA Report. It attempts to address concerns that have been expressed, in particular
that allegations of family violence and abuse can be easily made and may be taken
into account in family law proceedings. The provision is broader than family
violence or abuse allegations and would apply to any false statement knowingly
made.


216. The LACA Report noted that this approach avoids the need for separate criminal
proceedings for perjury which may not be appropriate given that parents need to
maintain an ongoing parenting relationship. Perjury can also be difficult to establish
given it is a criminal process. The provision ensures a message to the courts that a
penalty should be imposed at the same time as the court determination rather than
relying on the possibility of protracted criminal proceedings at a later date. The
penalty does not prevent criminal prosecution in appropriate cases. The court must be
satisfied on the balance of the probabilities that a party has knowingly made a false
allegation.

Part 2 ­ Application of Amendments

217. Schedule 1, Part 2 provides transitional arrangements for commencement of the
provisions where required.


                                         41
Item 42 ­ Definitions

218. This item inserts definitions to be applied in the interpretation of the transitional
provisions related to Schedule 1. This makes the provisions easier to understand.
Definitions are provided for `commencement', and the terms `old Act' and `new Act'.
This allows a distinction to be made about what provisions operate before and after
this Schedule commences.

Item 43 - Application

219. Paragraph (1) is a transitional arrangement to make clear that the new provisions
about the best interest requirements does not apply to proceedings that have been
initiated prior to commencement of the Schedule. This is because the new primary
and secondary factors will significantly change the type of evidence the parties may
need to bring to the court and the way cases are presented. Without this provision,
there may be significant costs to parties who are part way through a proceeding.

220. Paragraph (2) provides that items 13, 29 and 30, which explain how parental
responsibility provisions apply, will apply to parenting orders made in proceedings
initiated after commencement. This limits the application of those provisions.

221. Paragraph (3) provides that item 14, which takes into account a new
consideration of Aboriginal kinship and child rearing practice, will apply whether or
not the proceedings were initiated before commencement. It is not considered that
any party would be disadvantaged by this provision applying to existing proceedings
as courts would be likely to have considered such issues anyway.

222. Paragraph (4) states that the amendment made by item 15 (a family consultant
who is directed to give a report under subsection 62G(5)) applies to directions given
under that subsection on or after commencement. This will not be unfair in existing
proceedings as the court will be able to take any issues into account when deciding if
to make a direction.

223. Paragraph (5) provides that the new requirement that parenting plans be signed
and dated inserted by item 16 only applies to parenting plans made on or after
commencement.

224. Paragraph (6) provides that item 22, which states what a parenting order may
deal with, also applies to parenting orders made in proceedings initiated on or after
commencement.

225. Paragraph (7) provides that item 25, which inserts a new provision into
parenting orders that makes it clear that subsequent parenting plans make them
unenforceable, applies to parenting plans made on or after commencement. This will
include a parenting order that varies an earlier parenting order, whether the earlier
parenting order was made before or after commencement.

226. Paragraph (8) provides that the changes made by the insertion of provisions
requiring the court to consider equal time arrangements, to have regard to subsequent
parenting plans and the effect of parenting orders providing for parental


                                           42
responsibility, only apply to parenting orders made in proceedings initiated on or after
commencement. They do not apply to proceedings already initiated.

227. Paragraph (9) ensures that the change to subsection 65G(1) to limit the
requirement for a family report in certain circumstances, will apply to all proceedings
including those initiated prior to commencement. It is not considered that any party
would be disadvantaged by this provision applying to existing proceedings.




                                          43
SCHEDULE 2 ­ COMPLIANCE REGIME

Part 1 ­ Amendments

Family Law Act 1975

228. Schedule 2, Part 1 repeals and replaces the existing Division 13A of Part VII of
the Act dealing with 'consequences of failure to comply with orders, and other
obligations, that affect children'. The new Division 13A contains a range of
amendments to strengthen the existing enforcement regime in the Act.

229. Breaches of court orders are a major source of conflict and distress to all parties
involved. The amendments in Schedule 2 ensure that enforcement applications can be
dealt with appropriately by the court. This is particularly important to ensure that one
of the main objects of Part VII of the Act is fulfilled and that children are able to have
a meaningful relationship with both parents.

230. The reason the whole Division has been repealed is to make clear the intent and
structure of the Division. The provisions have been re-ordered in a more systematic
way. This addresses concerns of the LACA Committee that the existing provisions
were complex and difficult to understand. The revised Division provides a more
logical sequence of provisions. The issue of numbering raised by the LACA
Committee in recommendation 53 has also been addressed by the re-ordering of the
Division.

231. The previous terminology and references to a three-stage parenting compliance
regime have been removed. These three stages were not well understood as there was
confusion about the fact that stage 1 of the regime was in Division 6 of Part VII,
while stages 2 and 3 were in Division 13A.

Items 1 to 3 ­ Section 60C (table items 6 and 13A)

232. Items 1 to 3 amend the table in section 60C (in Division 1 of Part VII of the Act)
that provides an outline of the provisions in Part VII of the Act dealing with children.
These amendments remove the references in items 6 and 13A of the table to `stage 1
of parenting compliance regime', `stage 2 of parenting compliance regime', and
`stage 3 of parenting compliance regime', as this terminology is not used in the new
Division 13A (inserted by item 6).

Item 4 ­ Subsection 65D(3)

233. Item 4 amends subsection 65D(3) in Subdivision B of Division 6 of Part VII.
Section 65D sets out the court's power to make a parenting order. Subsection 65D(3)
provides that, if there is an adjournment of a proceeding for a contravention
application so that a party can apply for a further parenting order, the court must hear
and determine the application for the parenting order as soon as practicable. It also
allows the court, if it makes a further parenting order, to dismiss the contravention
application if that is appropriate. The change removes the terminology of stage 2 and
makes a consequential change to the paragraph references from



                                           44
'paragraph 70NG(1)(c) of proceedings under Subdivision B' to `paragraph
70NEB(1)(c) of proceedings under Subdivision E'. This reflects the revised structure
of Division 13A. (inserted by item 6).

Item 5 ­ Subsection 65D(3) (note)

234. Item 5 amends the note to subsection 65D(3). Subsection 65D(3) provides that,
if there is an adjournment of a proceeding for a contravention application so that a
party can apply for a further parenting order, the court must hear and determine the
application for the parenting order as soon as practicable. It also allows the court, if it
makes a further parenting order, to dismiss the contravention application if that is
appropriate. The note makes it clear that where a contravention application has been
adjourned, the person can apply to either the Family Court or the Federal Magistrates
Court for the parenting order. The change to the note is a consequential amendment
to the reference from `Subdivision B' to `Subdivision E' which reflects the new
structure of Division 13A (inserted by item 6).

235. The note to item 5 clarifies that the words `: stage 1 of parenting compliance
regime' are removed from the heading to section 65DA of the Act. This section sets
out the obligations on a court when making a parenting order. This terminology of a
three-stage parenting compliance regime is not used in the restructured and revised
Division 13A (inserted by item 6).

Item 6 - Division 13A of Part VII

236. Item 6 repeals and replaces the existing Division 13A which deals with the
consequences of the failure to comply with orders and other obligations that affect
children. The replacement Division 13A is restructured into a more logical way.

Subdivision A - Preliminary

Section 70NAA - Simplified outline of the Division

237. Subdivision A deals with preliminary matters that facilitate the operation of
Division 13A, including definitions of terms used in the Division and the standard of
proof to be applied in determining matters under the Division. Section 70NAA
provides a simplified outline of the Division, designed to make the Division easier for
readers, particularly self-represented litigants, to understand and use.

238. Subsection 70NAA(1) explains that the Division deals with the powers that a
court, exercising jurisdiction under the Act, has to make orders to enforce compliance
under this Act affecting children. For example, parenting orders which deal with the
time a child is to spend with a person.

239. Subsection 70NAA(2) clarifies that, in all contravention proceedings under this
Division, the court has the power under Subdivision B to vary the parenting order. In
doing so, the court will have regard to any parenting plan that has been entered into
since the order was made. Section 70NBB is relevant in relation to the effect of a
parenting plan in the contravention proceedings.



                                            45
240. Subsection 70NAA(3) outlines the different provisions that will be applied by
the court in assessing contravention applications. In particular it summarises the key
differences in the application of Subdivisions C, D and E. Subdivision C applies
where a contravention is alleged to have occurred, but is not established. This may
include situations where there is an application but the court decides it can deal with
the matter without making a finding about the contravention. Subdivision D applies
where the court makes a finding that a contravention has occurred, but there is a
reasonable excuse for a contravention. It sets out the powers of the court to make
orders in that situation.

241. Subdivisions E and F apply where the court finds that a contravention has
occurred and there is no reasonable excuse. Whether Subdivision E or F applies is a
matter for the court to determine and will depend on the seriousness of the
contravention. Subdivision E covers the cases where there is a less serious
contravention application and Subdivision F covers cases where there is a more
serious contravention application, including where there are repeated breaches of
orders. The Subdivisions set out the powers of the court to address contraventions in
each category. The range of options for the court in each situation have been
significantly increased.

Section 70NAB ­ Application of Division

242. Section 70NAB clarifies the application of Division 13A. This provision is in
exactly the same terms as section 70NAB of the existing Act. The reason that it is in
this Bill is because the whole of Division 13A has been repealed. It makes it clear
that this Division only applies to contraventions committed after the Division
commences.

Section 70NAC ­ Meaning of contravened an order

243. Section 70NAC sets out what it means for a party to have contravened an order
under the Act affecting children. To assist all users of the Act, particularly
self-represented litigants, a note is inserted after section 70NAC to highlight that an
action that would otherwise contravene a parenting order may not be a contravention
if it is consistent with a subsequent parenting plan. This is because under new section
64D (inserted by item 25 of Schedule 1), parenting orders may be subject to a
subsequent parenting plan. Where a parenting order includes a section 64D order,
then a contravention application cannot be brought to enforce the original order if
there is a subsequent parenting plan that has changed that aspect of the original
parenting order.

244. For example, there may be a parenting order that provides that the child is to
live with each parent for a week about. As the child gets older and the child's needs
change the parents may agree, using a parenting plan, that it would be in the best
interests of the child that the child change residence each fortnight. The new
provision 64D would prevent either of the parents bringing a contravention
application against the other person to seek to enforce the original orders. The parent




                                          46
no longer happy with the arrangement agreed in the parenting plan will need to either
seek to negotiate a new agreement or seek to get new parenting orders.

Section 70NAD - Requirements taken to be included in certain orders

245. Section 70NAD is in exactly the same terms as section 70ND of the existing
Act. It refers to the provisions in Subdivision C of Division 6 about the general
obligations created by parenting orders - for example, that a person cannot remove a
child from the care of a person where there is a parenting order that the child be in
that person's care. Only the terminology has been changed. The terms `residence
order', `contact order' and `specific issues order' are replaced with references to
orders relating to whom a child is to live, spend time and communicate. This is
consistent with recommendation 4 of the FCAC's report.

Section 70NAE ­ Meaning of reasonable excuse for contravening an order

246. Section 70NAE sets out what constitutes a reasonable excuse for contravening a
parenting order. Where there is a reasonable excuse the court is required to ensure the
person understands their obligations under the order and consequences if the order is
again breached. An example of a reasonable excuse is action necessary to protect the
health or safety of a person, including the respondent or the child.

247. This provision is in exactly the same terms as section 70NE of the existing Act,
with minor consequential drafting changes. The terminology has changed.
`Residence order' is replaced by a `parenting order which deals with who a child is to
live with. `Contact order' is replaced by a parenting order which deals with whom a
child is to spend time or to communicate. `Specific issues order' is replaced with a
reference to `a parenting order to which section 65P applies.' Section 65P provides
the general obligations that are created by parenting orders to the extent to which the
order allocates parental responsibility to a person. It ensures that a person cannot
hinder a person in carrying out such an order. The changes in terminology ensure the
more generic description of parenting orders operates. The provisions have
consequentially been renumbered.

Section 70NAF ­ Standard of proof

248. Section 70NAF replaces section 70NEA in the existing Act. It provides
clarification of the standard of proof to be applied by the court in considering
enforcement applications. The current test provided by section 140 of the Evidence
Act 1995 is the civil standard of proof, the balance of probabilities, with the court to
take account of the gravity of matters. Section 70NAF aims to assist practitioners and
self-represented litigants by clarifying the circumstances in which the court will apply
a different standard of proof.

249. New subsection 70NAF(1) specifies that the court should generally apply the
civil standard of proof, the balance of probabilities, in considering matters in
proceedings under Division 13A of Part VII of the Act. This is subject to subsection
70NAF(3), which provides that a stricter standard applies to orders being considered




                                          47
under the more serious contravention applications that may incur a criminal penalty
under provisions in Subdivision F.

250. New subsection 70NAF(2) clarifies that the court should also apply the civil
standard when determining whether a person had a reasonable excuse for having
contravened an order affecting a child under this Act. This approach should mean
that it is easier for many less serious contraventions to be dealt with by the court as
they will not need to be treated as a quasi-criminal proceeding.

251. New subsection 70NAF(3) provides that a stricter standard of proof, requiring
the court to be satisfied beyond reasonable doubt, applies to matters to which
Subdivision F applies when a court is considering a criminal consequence for the
contravention of an order (for example, imposing a bond, a fine, or a sentence of
imprisonment). This is appropriate given the consequences for the individual of
orders that impose criminal sanctions.

Subdivision B ­ Court's power to vary parenting order

Section 70NBA ­ Variation of parenting order

252. Section 70NBA is inserted as the first section of Subdivision B. It sets out the
court's power to vary a parenting order where a contravention of an order under the
Act affecting children has been alleged. The court may vary a parenting order under
Subdivision B regardless of whether the contravention is also dealt with under
Subdivisions D, E or F.

253. Experience suggests that many contravention applications come to the court
because circumstances have changed and the existing orders are no longer
appropriate. This provision makes it clear that the court always has the power to vary
the order whether it is a matter where a contravention is not established or where
there is a serious contravention and the court is making orders imposing criminal type
penalties. This flexibility should assist in resolving many applications that come to
the courts through contravention applications without the need for separate variation
applications to be lodged. Having this provision at the start of the Subdivision is
intended to simplify its application and to reduce the need for the duplication of a
similar provision in each of the subsequent Subdivisions.

254. Subsection 70NBA(1) sets out when a court may make an order varying a
`primary order'. `Primary order' is defined in the dictionary in section 4 of the Act to
mean an order under the Act affecting children or a variation of such an order. A
court may vary a primary order where contravention proceedings are brought in
relation to that order and it is alleged that a person has contravened the order. The
court may do so whether or not it finds that a contravention has been committed. This
flexibility is appropriate as the dispute about the contravention may highlight the fact
that the primary order is no longer suitable due to a change in the child's
circumstances. In such a case, it is important that the court have the power to vary the
order regardless of whether or not a contravention has been committed.




                                           48
255. Subsection 70NBA(2) provides that if there is a more serious contravention, that
would otherwise be dealt with under Subdivision F, then the court must take account
of certain considerations if it decides to vary the order under subsection 70NBA(1).
These additional considerations are set out in paragraphs 70NBA(2)(a) to (d). They
include that the person who contravened the order did so after having attended,
refused or failed to attend, or been found unsuitable to take any further part in, a post-
separation parenting program, or that there was no such program that the person could
attend. The court must also consider whether it would not be appropriate for a person
to attend such a program or part of a program because of the behaviour of the person
who contravened the order. An additional consideration is whether the primary order
was a compensatory parenting order made under paragraph 70NEB(1)(b) or
subsection 70NFB(2) after the person had contravened a previous order under the Act
affecting children. The intention of this provision is to ensure that, when varying an
order involving serious or repeated contraventions, the court considers whether there
are other viable options such as ordering the person to attend a post-separation
parenting program or making a compensatory order are viable, or whether they have
been tried before without success. The best interests of the child remain the
paramount consideration in varying any order.

Section 70NBB ­ Effect of parenting plan

256. New section 70NBB requires the court to have regard to the terms of a parenting
plan that parents have made subsequent to a parenting order, when it is considering
whether to vary a parenting order under section 70NBA above. This section is
relevant to those parenting orders which do not have an order made by section 64D
(which provides that subsequent parenting plans make the orders unenforceable).
These provisions will be particularly relevant once the family law reforms are in
place. People who had made parenting orders some time ago will be encouraged, and
in some cases will be required, to attend a dispute resolution process before making
an application to a court. Agreements will be encouraged rather than going back to
court.

257. Subsection 70NBB(1) sets out that the section applies to situations where a
parenting order is made about a child, and after that order was made, the parents made
a parenting plan that dealt with a matter that was covered by the parenting order.

258. Subsection 70NBB(2) requires the court, when exercising its powers to vary an
order under section 70NBA, to consider the terms of the parenting plan and whether
to make an order varying the parenting order to include some or all of the provisions
of the parenting plan, with or without modification. Section 70NBB gives greater
importance to parenting plans made after parenting orders, in order to provide
maximum flexibility for parents to come to agreement even if there is a parenting
order in effect. Section 70NBB implements recommendation 39 of the LACA Report.

259. The provision allows the court to consider the type of arrangements that the
parties may have considered and which have not worked for them. The parenting
plan may be very relevant if the reason that one party has technically contravened an
order was because they thought they had a formal agreement with the other party.




                                           49
The court is not bound by the subsequent parenting plan - it is simply to be taken into
consideration.

260. The provision will also be very relevant in the new family law system which
aims to keep people out of court. People with existing orders will be encouraged to
use parenting plans rather than parenting orders to address changing circumstances.
They will be supported in making parenting plans by the services of the Family
Relationship Centres. It is therefore appropriate that these be taken into account if the
matter does need to return to court at a later date.

261. As discussed previously, section 70NBB will only be relevant for the
enforcement of parenting orders that do not have a section 64D default clause. This is
providing that the parenting order is subject to a subsequent parenting plan (for
example, parenting orders made prior to the commencement of the provision or where
the court has exercised its discretion not to include the provision). The effect of
section 64D (inserted by item 25 of Schedule 1) is that a parenting order will be
unenforceable to the extent it is inconsistent with a subsequent parenting plan. This is
appropriate in the new system which will encourage people to resolve issues by
agreement rather than through the courts. People will know upfront, when they get
their initial parenting order, of the potential effect of subsequent parenting plans.

Subdivision C ­ Contravention alleged but not established

Section 70NCA ­ Application of Subdivision

262. Section 70NCA is the first section of Subdivision C. It provides that
Subdivision C applies where a contravention is alleged to have occurred but is not
established. This is the first of the potential options available for the court in dealing
with a contravention application. For example, this provision will apply where the
person fails to satisfy the standard of proof on the balance of probabilities that there
has been a contravention.

263. The court can still look at the existing orders and determine if circumstances
have changed, and if a variation of the original parenting order is warranted. The note
to section 70NCA is an important signpost for readers, particularly self-represented
litigants. It clarifies that, in addition to the court's powers in Subdivision C to order
costs against the person who brought the proceeding, the court may also vary the
order that has been contravened under Subdivision B. Subdivision B sets out the
court's power to vary a parenting order and the effect of a subsequent parenting plan
where a contravention has been alleged.

Section 70NCB ­ Costs

264. Section 70NCB provides that the court may order that the person who brought
the contravention proceedings pay some or all of the costs of the other party or parties
to the proceedings. The court must consider, in making such an order, if the applicant
has previously brought contravention proceedings in relation to the primary order (or
another primary order) and if, on the most recent occasion on which the person
brought the proceedings, the court was not satisfied that a contravention had been



                                            50
committed or was satisfied that a contravention had been committed but did not make
an order under section 70NBA, 70NDB, 70NDC, 70NEB or 70NFB (these are the
sections under which the court has the power to make orders dealing with
contraventions that it finds). The intention is to deter people from making repeated
contravention applications which aim to harass or inconvenience the other party. This
implements recommendation 40 of the LACA Report.

Subdivision D ­ Contravention established but reasonable excuse for contravention

Section 70NDA ­ Application of Subdivision

265. Section 70NDA is the first section of Subdivision D. It provides that
Subdivision D applies if the court is satisfied that a person has committed a
contravention of a primary order, but that the person had a reasonable excuse for the
contravention. This applies to a contravention committed before or after the
commencement of this Subdivision of a primary order made before or after the
commencement of the Subdivision. `Primary order' is defined in the dictionary in
section 4 of the Act to mean an order under the Act affecting children, or a variation
of such an order. Section 70NAE in Subdivision A explains what constitutes a
reasonable excuse for contravening an order.

266. The note to section 70NDA provides an important signpost for readers,
particularly self-represented litigants. It clarifies that, in addition to the court's
powers in Subdivision D to order make up contact time or to order costs against the
person who brought the application, the court may vary the order that has been
contravened under Subdivision B. Subdivision B sets out the court's power to vary a
parenting order and to take account of a parenting plan where a contravention of an
order under the Act affecting children has been alleged. This ensures flexibility to
address changing circumstances which warrant a variation of the parenting order
without the need for a separate application to be made.

Section 70NDB ­ Order compensating person for time lost

267. The first option for the court to consider when Subdivision D applies is set out
in section 70NDB. This section provides that if a person has contravened a parenting
order and the result of the contravention is that another person did not spend time
with the child or that the child did not live with another person for a particular period,
the court must consider making an order which compensates the person for the time
they did not spend with the child or did not have the child living with them.

268. This allows for the court to order make-up time even where the person who
committed the contravention had a reasonable excuse. This is appropriate given that
the original parenting order for contact was made in the best interests of the child, that
contact with both parents is an important aspect of ensuring that a child maintains a
meaningful relationship with both parents and that parents are able to fulfil their
parental responsibilities in relation to their child.

269. The note to subsection 70NDB(1) is a signpost for readers directing them to the
sections of Subdivisions E and F under which the court has the power to make an



                                           51
order compensating a person for time lost. Unlike Subdivision D, these Subdivisions
apply where a person does not have a reasonable excuse for a contravention. In those
cases, the court has a number of other options, as well as ordering make-up time.

270. Subsection 70NDB(2) provides that the court must not make a compensatory
order under section 70NDB where it would not be in the best interests of the child to
do so. It is intended that the exception relating to the best interests of the child will
cover, for example, where one party refuses the other party time with the child
because of a fear of violence or abuse. However, it is not intended that the exception
would capture the whole range of reasons for contravention that could amount to
`reasonable excuse' in section 70NAE in Subdivision A. In all cases, other than
where it is not in the child's best interests to do so, it is intended that the court must
consider whether compensatory time with the child should be ordered to make up for
the missed time.

Section 70NDC ­ Costs

271. The second option for the court to consider when Subdivision D applies is set
out in section 70NDC. This section provides that if the court does not make an order
under section 70NDB compensating a person for lost time, the court may order that
the person who brought the contravention proceedings pay some or all of the costs of
the other party or parties to the proceedings. The court must consider making such an
order if the applicant has previously brought contravention proceedings about the
primary order (or another primary order) and, on the most recent previous occasion on
which the person brought the contravention proceedings, the court was not satisfied
that a contravention had been committed, or was satisfied that a contravention had
been committed but did not make an order under section 70NBA, 70NDB, 70NEB or
70NF dealing with the contravention. The intention of this provision is to deter
people from making repeated contravention applications which aim to harass or
inconvenience the other party. This implements recommendation 40 of the LACA
Report.

Subdivision E ­ Contravention without reasonable excuse (less serious contravention)

Section 70NEA - Application of Subdivision

272. Subsection 70NEA(1) sets out when Subdivision E applies. It applies if a
person has committed a contravention of a primary order (defined in the dictionary in
section 4 of the Act) with no reasonable excuse, and the contravention is of a less
serious nature. Section 70NAE in Subdivision A explains what constitutes a
reasonable excuse for contravening an order.

273. Subsections 70NEA(2) and (3) clarify when a contravention is of a less serious
nature such that Subdivision E applies. Under subsection 70NEA(2), the Subdivision
will apply if no court has previously imposed a sanction, taken action, or adjourned
proceedings under paragraph 70NEB(1)(c) in respect of a contravention by the
person. Thus persons who repeatedly breach parenting orders will generally not be
dealt with under this Subdivision, but under the Subdivision that deals with more
serious contraventions. However, under subsection 70NEA(3), in some cases where



                                            52
there has been more than one contravention and where a court has previously imposed
a sanction, or taken action, or adjourned proceedings under paragraph 70NEB(1)(c) in
respect of a contravention by the person, but the court is satisfied that the
circumstances of the current contravention make it more appropriate for it to be dealt
with under Subdivision E, it can deal with the matter as a less serious contravention.
This provides the court flexibility to decide it is appropriate to deal with a matter as a
minor contravention even where there has been a previous breach. The substance of
these provisions has not changed from the existing provisions.

274. Subsection 70NEA(4) provides that Subdivision E will not apply even if the
circumstances set out in subsection 70NEA(2) are met, if the court is 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. This allows the
court the flexibility to decide that the contravention should be dealt with as a
contravention of a more serious nature under Subdivision F, where there are more
serious penalties available including criminal sanctions.

275. Subdivision E effectively replaces stage 2 of the parenting compliance regime in
the existing Act. It is not intended to cover serious or repeated contraventions of a
parenting order. These are covered by new Subdivision F (previously stage 3 of the
parenting compliance regime).

Section 70NEB - Powers of Court

276. Where there is a less serious contravention and Subdivision E applies, the court
has the powers set out in section 70NEB. These powers expand on those in
subsection 70NG(1) of the existing Act in order to strengthen the existing
enforcement regime.

277. Under paragraph 70NEB(1)(a), the court may direct the person who contravened
the order, or that person and another specified person, to attend a post-separation
parenting program. The intention is that this will help parents resolve problems that
affect the carrying out of their parenting responsibilities. This option is already
available. Under paragraph 70NEB(1)(b), the court may now also make an order
which compensates a party for the time they did not spend time with the child or did
not have the child living with them as a result of the contravention. Under paragraph
70NEB(1)(c), the court may adjourn the proceedings to allow the parties to apply for
a further parenting order. These paragraphs are essentially the same as existing
paragraphs 70NG(1)(a), (b) and (c). The terminology in paragraph 70NG(1)(b) has
been changed. The reference to `contact' is replaced with `time the person did not
spend with the child' and the reference to `residence' is replaced with `time the child
did not live with the person'. This is consistent with recommendation 4 of the
FCAC's report.

278. New paragraphs 70NEB(1)(d), (e) and (f) add to the existing powers of the court
and will significantly strengthen the power of the court to address less serious
contraventions in a way that deters further contraventions. New
paragraph 70NEB(1)(d) introduces a discretion for the court to impose a bond in
accordance with new section 70NEC.



                                           53
279. New paragraph 70NEB(1)(e) enables the court to order the person who
contravened an order to compensate another person who incurred expenses as a result
of the contravention. The expenses incurred must be reasonable expenses. This
provision is intended to cover situations where airfares or other tickets purchased are
wasted as a result of a person, for example, not making the child available for time
with the other parent under a parenting order.

280. New paragraph 70NEB(1)(f) enables the court to make an order that the person
who committed the contravention pay some or all of the costs for legal expenses of
the other party or parties to the proceedings.

281. Where the court makes no other orders in relation to the contravention, new
paragraph 70NEB(1)(g) enables the court to order that the person who brought the
proceedings pay some or all of the costs of the person who committed the
contravention. The court must consider making such an order in the circumstances
set out in subsection 70NEB(7), below. The intention is to deter people from making
repeated contravention applications which aim to harass or inconvenience the other
party. This implements recommendation 40 of the LACA Report.

282. Note 1 to subsection 70NEB(1) provides an important signpost for readers,
particularly self-represented litigants. It clarifies that, in addition to the court's
powers in Subdivision E, the court may, under Subdivision B, vary the order that has
been contravened. Subdivision B sets out the court's power to vary a parenting order
and consider the effect of parenting plan where a contravention of an order under the
Act affecting children has been alleged.

283. Note 2 to subsection 70NEB(1) clarifies that before the court makes an order for
a person to attend a post-separation parenting program, it consider seeking the advice
of a family consultant. This is appropriate as they are likely to have more experience
in dealing with local services and a better understanding of what might be available
and suitable for the individual. The note refers readers to section 11E (inserted by
Schedule 4) which sets out when the court may seek advice from a family consultant.

Subsection 70NEB(2) and (3)

284. Subsections 70NEB(2) and (3) are in exactly the same terms as
subsections 70NG(2) and (3) of the existing Act. Subsection 70NEB(2) deals with
when a court can make an order under paragraph 70NEB(1)(a) that a person, other
than the person who committed the contravention, attend a post-separation parenting
program. Subsection 70NEB(3) requires the principal executive officer of the court
to notify the provider of the program that the order has been made. This is to ensure
that they are aware of the orders. The reason these provisions are repeated in this Bill
is because the whole of Division 13A has been repealed.

Subsection 70NEB(4) and (5)

285. Subsection 70NEB(4) provides further details about the application of paragraph
70NEB(1)(b) which allows the court to make an order compensating a person for time



                                          54
the person did not spend or live with the child due to a contravention. This is
appropriate as it may ensure the child benefits from time with the other person that
they have missed out on.

286. New subsection 70NEB(4) provides that the court must consider making a
compensatory order under paragraph 70NEB(1)(b) where a contravention of a
parenting order has occurred which has resulted in a person not spending time with,
or living with, a child. However, subsection 70NEB(5) provides that the court must
not make a compensatory time order under paragraph 70NEB(1)(b) where it would
not be in the best interests of the child to do so.

Subsection 70NEB(6)

287. Subsection 70NEB(6) provides further details about the application of
paragraph 70NEB(1)(c) which provides that the court may adjourn the proceedings to
allow the parties to apply for a further parenting order. This provision is in exactly
the same terms as subsection 70NG(1A) of the existing Act.

Subsection 70NEB(7)

288. Subsection 70NEB(7) provides further details about the application of
paragraph 70NEB(1)(g) which enables the court to order that the person who brought
the proceedings pay some or all of the costs of the person who committed the
contravention. The court must consider making such an order if the applicant has
previously brought contravention proceedings in relation to the order and, on the most
recent occasion on which the person brought the proceedings, the court was not
satisfied that a contravention had been committed or was satisfied that a contravention
had been committed but did not make an order under section 70NBA, 70NDB,
70NDC, 70NFB or 70NBA (these are the sections under which the court has the
power to make orders dealing with contraventions). The intention is to deter people
from making repeated contravention applications for minor breaches which aim to
harass or inconvenience the other party. It is only applicable where the court has
considered the issue and decided that no orders are appropriate. This is one of a
number of amendments that implement recommendation 40 of the LACA Report.

Section 70NEC - Bonds

289. Section 70NEC provides for the type of bonds the court may require a person to
enter into as a sanction for committing a less serious contravention under the new
paragraph 70NEB(1)(d). The court must specify the period of the bond (limited to 2
years) (subsection 70NEC(2)) and determine if the bond is to be with or without
surety and security (subsection 70NEC(3)).

290. The conditions that may be imposed on a person by a bond are detailed in
subsection 70NEC(4) but are not limited to those listed in that subsection. The court
may require good behaviour by a person or for that person to attend an appointment
with a family consultant, or attend family counselling or family dispute resolution.




                                          55
291. Subsection 70NEC(5) requires the court, if it proposes to require a person to
enter into a bond, to clearly explain to a person in language likely to be understood by
the person, the purpose and effect of the requirement and the consequences of not
entering into the bond or failing to act in accordance with the bond. This requirement
on the court is consistent with other provisions in the Act that oblige the court,
lawyers and others, to provide clear information about the nature and effect of any
orders made in proceedings under this Act so that there can be no misunderstanding
about what is intended.

Section 70NED ­ Duties of provider of post-separation parenting program

292. Section 70NED replaces section 70NH of the existing Act. It provides that a
provider of a post-separation parenting program, which a person has been ordered to
attend under paragraph 70NEB(1)(a), must inform the court if the provider considers
the person to be unsuitable to attend the program, or if the person fails to attend the
whole or part of the program.

Section 70NEF ­ Evidence

293. Section 70NEF replaces section 70NI of the existing Act. Subsection 70NEF(1)
provides that evidence of anything said, or any admission made, by a person attending
a post-separation parenting program is not admissible in any court, or any
proceedings. However, subsection 70NEF(2) provides that evidence in the form of an
adult's admission of abuse or risk of abuse to a child under 18 years, or a disclosure
by a child that he or she has been abused or is at risk of abuse, is not excluded by
operation of subsection 70NEF(1).

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

294. Section 70NEG replaces section 70NIA of the existing Act, and allows the court
to make appropriate orders if a person who has been ordered to attend post-separation
parenting program does not attend, or was assessed as unsuitable to attend.

Subdivision F ­ Contravention without reasonable excuse (more serious
contravention)

Section 70NFA ­ Application of Subdivision

295. Subsection 70NFA(1) sets out that Subdivision F applies if a person has
committed a contravention of a primary order (defined in the dictionary in section 4
of the Act) with no reasonable excuse and the contravention is of a more serious
nature. Section 70NAE explains what constitutes a reasonable excuse for
contravening an order. The note to subsection 70NFA(1) refers the reader to section
70NAF, which sets out the applicable standard of proof in determining matters under
Division 13A.

296. Subsections 70NFA(2) and (3) clarify when a contravention is of a more serious
nature such that Subdivision F applies. Under subsection 70NFA(2), this will be the



                                          56
case even if no court has previously imposed a sanction, taken action, or adjourned
proceedings under paragraph 70NEB(1)(c) in respect of a contravention by the
person, yet the court is satisfied that the person has behaved in a way that showed a
serious disregard of his or her obligations under the primary order. Thus a person
who only commits one contravention can be immediately dealt with under this
Subdivision if they show serious disregard for their obligations. What amounts to a
serious disregard will depend on the circumstances of the case but, by way of
example, could include the removal of a child to another place despite orders of the
court or harassment despite repeated warnings and the terms of the parenting order.
In such cases, the court will deal with the matter under Subdivision F, which requires
the court to consider imposing more serious penalties ranging from community
service orders to fines and imprisonment.

297. Subsection 70NFA(3) clarifies that a contravention is of a more serious nature,
such that Subdivision F applies, if a court has previously imposed a sanction, taken
action, or adjourned proceedings under paragraph 70NEB(1)(c) in respect of a
contravention by the person. Thus where there have been repeated breaches the
matter would ordinarily be dealt with as a more serious contravention under
Subdivision F.

298. Subsection 70NFA(4) provides that Subdivision F does not apply if the court is
satisfied that it is more appropriate for the contravention to be dealt with under
Subdivision B. Under Subdivision B the court can vary a parenting order and must
take account of a subsequent parenting plan. This allows the court the flexibility to
decide that the contravention is best dealt with by varying the parenting order. This is
appropriate as in some cases a variation of the parenting order may be the most
appropriate option even where the conditions for the application of Subdivision F are
met. For example, there may be a serious contravention and the court may simply
decide it is in the best interests of the child to vary the parenting order to reverse the
order about who the child will live with but not to impose any other penalty under
Subdivision F.

299. Subsection 70NFA(5) clarifies that the Subdivision applies whether the
parenting order to which the contravention relates was made prior to the
commencement of the new division; or whether the contravention occurred prior to
the commencement of the new division. This provision is in the same terms as
subsection 70NJ(2B) of the existing Act.

300. Subdivision F effectively replaces stage 3 of the parenting compliance regime in
the existing Act.

Section 70NFB ­ Powers of Court

301. Where Subdivision F applies and there is a more serious contravention, the court
has the powers set out in section 70NFB. These powers expand on those in the
existing Act in order to strengthen the existing enforcement regime.

302. New paragraph 70NFB(1)(a) provides that where there is a serious
contravention there is a presumption that the court will order costs against the person



                                           57
who has contravened the order (using the courts power to award costs under
paragraph 70NFB(2)(g)) unless it is not in the best interests of the child.

303. Paragraph 70NFB(1)(b) provides that where the court makes an order for costs
under paragraph 70NFB(2)(g), the court must also consider making another order
under subsection 70NFB(2). For example, a compensatory order, a community
service order or an order imposing a fine.

304. Where the court does not make an order for costs under paragraph 70NFB(2)(g),
the court must make at least one other order under subsection 70NFB(2) that the court
considers to be the most appropriate. This ensures that the court must impose some
kind of sanction to more serious contraventions.

305. Subsection 70NFB(2) lists the powers that are available to the court under
Subdivision F for serious contraventions. These powers expand on those in
subsection 70NJ(3) of the existing Act in order to strengthen the existing enforcement
regime. The existing subsection 70NJ(3) provides that the court can impose various
sanctions including a community service order, a bond, a fine of up to 60 penalty
units or a sentence of imprisonment for a period of 12 months or less. These
sanctions are retained in paragraphs 70NFB(2)(a), (b), (d) and (e) respectively.

306. New paragraph 70NFB(2)(c) expands the possible sanctions to include a power
for the court to make a compensatory order for the time a person did not spend with
the child as a result of the contravention.

307. New subparagraph 70NFB(2)(f) enables the court to order the person who
contravened an order to compensate another person who incurred expenses as a result
of the contravention. The expenses incurred must be reasonable expenses. This
provision is intended to cover situations where airfares or other tickets purchased are
wasted as a result of a person, for example, not making the child available for time
with the other parent under a parenting order.

308. New subparagraph 70NFB(2)(g) enables the court to make an order that the
person who contravened an order pay all of the costs for legal expenses of the other
party or parties to the proceedings under Division 13A. New subsection 70NFB(1)
inserts a presumption that where Subdivision F applies the court will make a costs
order under paragraph 70NFB(2)(g) unless it is not in the best interests of the child.

309. New paragraph 70NFB(2)(h) enables the court to make an order that the person
who contravened an order pay some of the costs for legal expenses of the other party
or parties to the proceedings under Division 13A.

310. Subsection 70NFB(3) provides that where a court varies or discharges a
community service order under section 70NFD it may give any direction as to the
effect of the variation or discharge as it thinks appropriate. This provision is in
exactly the same terms as subsection 70NJ(4) of the existing Act, with minor
consequential drafting changes.




                                           58
311. Subsection 70NFB(4) provides that a sanction of imprisonment may be imposed
for the non-payment of maintenance where the contravention was intentional or
fraudulent. This provision is in similar terms as subsection 70NJ(6) of the existing
Act.

312. Subsection 70NFB(5) provides that the court must not impose a sanction of
imprisonment in respect of a breach of certain provisions of the Child Support
(Assessment) Act 1989 - in particular, a contravention of a child support assessment or
a breach of a child support agreement made under that Act, or a contravention of a
departure order made under Division 4 of Part 7 of that Act. This provision is in
exactly the same terms as subsection 70NJ(6A) of the existing Act.

313. Subsection 70NFB(6) provides the court with flexibility to express an order
made under section 70NFB to take effect immediately, at the end of a specified period
or on the occurrence of a specified event. This provision is in exactly the same terms
as subsection 70NJ(7) of the existing Act.

314. Subsection 70NFB(7) clarifies that at the time of imposing a sanction the court
may also make other orders it considers necessary to ensure future compliance. This
provision is in exactly the same terms as subsection 70NJ(8) of the existing Act.

Section 70NFC ­ When court is empowered to make a community service order

315. Section 70NFC sets out the details of a community service order the court is
empowered to make under paragraph 70NFB(2)(a). This provision is in similar terms
to section 70NK of the existing Act, with only minor consequential drafting changes.

Section 70NFD ­ Variation and discharge of community service orders

316. Section 70NFD provides for the variation and discharge of community service
orders. This provision is in similar terms to section 70NL of the existing Act, with
only minor consequential drafting changes.

Section 70NFE ­ Bonds

317. Section 70NFE provides for bonds that the court may impose under
paragraph 70NFB(2)(b). This provision is in similar terms to section 70NL of the
existing Act, with only minor consequential drafting changes.

Section 70NFF ­ Procedure for enforcing community service orders or bonds

318. Section 70NFF provides for the procedure for enforcing community service
orders or bonds. This provision is in similar terms to section 70NN of the existing
Act, with only minor consequential drafting changes.

Section 70NFG ­ Sentences of imprisonment




                                          59
319. Section 70NFG provides for sentences of imprisonment that may be imposed by
the court under paragraph 70NFB(2)(e). This provision is in similar terms to
section 70NO of the existing Act, with minor consequential drafting changes.

Section 70NFH ­ Relationship between Subdivision and other laws

320. Section 70NFH explains the relationship between Subdivision F and other laws.
This provision is in similar terms to section 70NP of the existing Act, with only minor
consequential drafting changes.

Section 70NFI ­ Arrangements with States and Territories for carrying out of
sentences and orders

321. Section 70NFI explains the arrangements with the States and Territories for
carrying out sentences and orders. This provision is in exactly the same terms as
subsection 70NQ of the existing Act.

Section 70NFJ ­ Subdivision does not limit operation of section 105

322. Section 70NFJ explains the interaction between Subdivision F and section 105.
This provision is in exactly the same terms as subsection 70NR of the existing Act.

Item 7 ­ Subsection 117(1)

323. Subsection 117(1) states the principle that each party to proceedings under
the Act shall bear his or her own costs. Item 7 amends subsection 117(1) to make the
principle subject to new subsection 70NFB(1). Subsection 70NFB(1) inserts a
presumption that, where there is a contravention to which Subdivision F applies, the
court will make an order for costs against the party who has committed the
contravention, unless it is not in the best interests of the child. Item 7 is a
consequential amendment to facilitate the operation of subsection 70NFB(1).

Part 2 ­ Application of amendments and savings

Item 8 - Definitions

324. Item 8 provides definitions for the terms 'commencement', 'new Act', and 'old
Act' used in this Part.

Item 9 - Application

325. Item 9 specifies that the Schedule 2 amendments apply to a contravention of a
parenting order (or alleged contravention) that occurs on or after the commencement
of the Schedule.

Item 10 - Saving of regulations

326. Item 10 identifies regulations that were made under the specified provisions of
the Act prior to the commencement of these amendments. This item saves those



                                          60
regulations so that they will continue to have effect on and after the commencement
of these amendments, as if they had been made for the purpose of specified
corresponding provisions of the amended Act. A table of corresponding provisions is
provided.




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SCHEDULE 3 ­ AMENDMENTS RELATING TO THE CONDUCT OF
CHILD-RELATED PROCEEDINGS

Part 1 ­ Amendments

327. Schedule 3, Part 1 implements a range of amendments to provide legislative
support for a less adversarial approach to be adopted in all child-related proceedings
under the Act. This approach relies on active management by judicial officers of
matters and ensures that proceedings are managed in a way that considers the impact
of the proceedings themselves (not just the outcome of the proceedings) on the child.
The intention is to ensure that the case management practices adopted by courts will
promote the best interests of the child by encouraging parents to focus on their
parenting responsibilities.

328. This approach largely reflects the approach taken by the Family Court in its
pilot of the Children's Cases Program although it is not intended to restrict courts
exercising family law jurisdiction under that program. The approach contains
provisions about procedure already contained in the Federal Magistrates Act 1999. It
also reflects provisions relating to management of cases in the United Kingdom Civil
Procedure Rules (40th Update) and the Children and Young Persons (Care and
Protection Act) Act 1998 (NSW).

Commencement

329. The amendments made by Part 1 of this Schedule will apply to proceedings
commenced by an application filed on or after 1 July 2006. This will allow time to
implement new procedures within courts exercising family law jurisdiction, and other
concurrent family law reforms.

Evidence Act 1995

Item 1 ­ At the end of subsection 190(1)

330. Item 1 adds a note at the end of subsection 190(1) of the Evidence Act 1995 (the
Evidence Act) to highlight that the Act deals with the evidence issues in child-related
proceedings, as defined in section 69ZM (inserted by item 4 of this Schedule).
Section 69ZM is the section that sets out the proceedings to which new Division 12A
applies. This includes all proceedings under Part VII of the Act (the part of the Act
that deals with children). It also includes any other proceedings between the parties
that arise from the breakdown of their relationship and that involve the court
exercising family law jurisdiction, if the parties consent. This gives parties the option
of resolving all elements of their family law dispute using the same less adversarial
procedures that apply in children's matters.




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Family Law Act 1975

Item 2 ­ Subsection 4(1)

331. Item 2 inserts a definition of `child-related proceedings' into subsection 4(1) of
the Act, containing the definitions that are used throughout the Act. `Child-related
proceedings' is defined by reference to section 69ZM which sets out the proceedings
to which new Division 12A applies. Division 12A contains the principles for
conducting child-related proceedings in a less adversarial manner. The definition is
important because the provisions in Division 12A only apply to matters which are
`child-related proceedings'.

Item 3 ­ Section 60C (after table item 12)

332. Item 3 inserts a new item 12A into the table in section 60C which provides an
outline of the provisions in Part VII of the Act (the Part of the Act that deals with
children). The item refers to the addition of new Division 12A into Part VII.
Division 12A contains the principles for conducting child-related proceedings in a
less adversarial manner and the duties and powers of the court in giving effect to
these principles.

Item 4 ­ After Division 12 of Part VII

333. Item 4 inserts new Division 12A into Part VII of the Act relating to children.
Division 12A sets out the principles for conducting child-related proceedings in a less
adversarial manner. The Division contains a list of general duties and powers that a
court must adopt in child-related proceedings and the rules of evidence in those
proceedings.

Subdivision A ­ Proceedings to which this Division applies

Section 69ZM ­ Proceedings to which this Division applies

334. New section 69ZM defines what is meant by `child-related proceedings', and
how Division 12A applies. Division 12A only applies to `child-related proceedings'.
Firstly, subsection 69ZM(1) provides that `child-related proceedings' are all
proceedings under Part VII of the Act. Part VII relates to children and deals with
proceedings for orders such as parenting orders, child maintenance orders, location
and recovery orders, orders for the enforcement of orders affecting children, and
proceedings for injunctions relating to children.

335. Secondly, paragraph 69ZM(2)(a) provides that `child-related proceedings'
include proceedings that are partly under Part VII of the Act to the extent that they are
proceedings under that Part. Paragraph 69ZM(2)(b) then provides that `child-related
proceedings' can also include proceedings that are partly under Part VII of the Act to
the extent that they are not proceedings under that Part, if the parties consent.
Subsection 69ZM(5) ensures that any such consent must be free from coercion and in
a form to be prescribed by the Rules of Court. This requirement that consent be free
from coercion implements LACA recommendation 35.



                                           63
336. Subsection 69ZM(3) provides that `child-related proceedings' also include any
other proceedings between the parties that involve the court exercising jurisdiction
under the Act and that arise from the breakdown of the parties' marital relationship, if
the parties consent. This may include, for example, property settlement proceedings
or spousal maintenance proceedings. However, Division 12A will only apply to such
proceedings where the parties have each consented and where the parties are also
parties to proceedings under Part VII of the Act or have been parties to such
proceedings. Subsection 69ZM(5) ensures that any such consent must be free from
coercion.

337. New paragraph 69ZM(5)(a) provides that the consent to a matter becoming a
child-related proceeding must be free from coercion. This implements
recommendation 35 of the LACA Report and addresses concerns that weaker parties
may be forced into giving their consent by stronger parties. New paragraph
69ZM(5)(b) allows the Rules of Court to prescribe the form by which consent must be
given. This will ensure a standard procedure for signifying consent that will allow the
court to be satisfied that the consent of the parties is deliberate and informed.

338. Subsection 69ZM(6) provides that consent given by persons for the purposes of
subsection 69ZM(5) is irrevocable except with leave of the court. This means that if a
party has given his or her consent to a proceeding which is covered by paragraph
69ZM(2)(b) or subsection 69ZM(3) being dealt with by a court in accordance with the
provisions in new Division 12A, that party cannot later revoke that consent without
the leave of the court and have the dispute dealt with otherwise than in accordance
with Division 12A. The intention is to minimise the costs involved in courts having
to adopt a different case management approach once a matter has begun on the basis
that parties have changed their minds about consent. The fact that consent must be
demonstrated by a form prescribed by the court will ensure that there is evidence
about what the parties have agreed.

Subdivision B ­ Principles for conducting child-related proceedings

Section 69ZN ­ Principles for conducting child-related proceedings

339. New section 69ZN sets out the principles for conducting child-related
proceedings. Subsection 69ZN(1) provides that the court must give effect to these
principles in performing its duties and exercising its powers (whether under this
Division or otherwise) in child-related proceedings, and in making other decisions
about the conduct of child-related proceedings. These principles will apply in the
exercise of the court's duties and powers in other proceedings that the parties have
consented to join to child-related proceedings, and therefore to which Division 12A
applies, by virtue of paragraph 69ZM(2)(b) and subsection 69ZM(3). However, the
proceedings, or any order made in them, will not be invalid should the court fail to
apply a principle.

340. Subsection 69ZN(2) removes any doubt that regard is to be had to the principles
in interpreting Division 12A.




                                          64
341. The first principle, in subsection 69ZN(3), is intended to ensure that the
proceedings are focussed on the child. This means that the court must consider the
child's needs and the impact that the conduct of the proceedings may have on
him/her. In particular the court must consider the likely stress on the child of the
conflict between the parents that is created by the proceedings and seek to minimise
this. The court may, for example, consider making orders that the child attend family
counselling to assist the child to understand the court's orders or the trial process.
The court may also, when setting hearing dates, consider the stress caused to the child
by lengthy times between hearing dates and seek to minimise this impact where
appropriate.

342. The second principle, in subsection 69ZN(4), is that the court must actively
direct, control and manage the conduct of child-related proceedings. This will
enhance the role of the judicial officer, requiring them to have more control over the
conduct of the hearing, rather than the parties and their representatives controlling the
conduct of the hearing.

343. The third principle, in subsection 69ZN(5), is that the proceedings must be
conducted in a way that will safeguard the child or children concerned against family
violence, child abuse and child neglect; and safeguard the parties against family
violence. This implements recommendation 36 of the LACA Report and gives
emphasis to the protection of the child in less adversarial proceedings. The more
active case management approach in Division 12A should ensure that allegations of
violence and abuse are dealt with at an earlier stage in the court process. It will also
ensure that judicial officers are better able to ensure that appropriate evidence is
before them. This will assist courts to better address issues of child abuse and family
violence in proceedings.

344. The fourth principle, in subsection 69ZN(6), is intended to ensure that the
proceedings, as far as possible, are conducted in a way that encourages the parents to
focus on their child or children and on their ongoing relationship as parents. The aim
is to promote both a focus on the child and cooperation between the parties to allow at
least a positive working relationship between them, both during and after the
proceedings so that they can communicate in order to fulfil their responsibilities as
parents. This means that the court, when it considers how to conduct the proceedings,
must consider ways that it might minimise the level of conflict between the parents
and ensure that the focus of both parents is on the child.

345. This principle comes from concerns that a traditional adversarial approach to
litigation is harmful to children as it can entrench conflict between parents. It can
also lead to a focus on the parents and their perceptions of their rights rather than a
focus on the child.

346. The fifth principle, in subsection 69ZN(7), is intended to provide that the
proceedings be conducted without undue delay and with as little formality and legal
technicality as possible. This does not mean that the proceedings will be conducted in
a casual way that detracts from the seriousness of the orders being made. It is
intended that the proceedings be conducted in a way that makes the parties feel
comfortable and that ensures that the matter can be finalised in a timely way. It is



                                           65
intended that new subsection 69ZN(7) go further than the current subsection 97(3) of
the Act, which provides that in proceedings under the Act the court shall proceed
without undue formality and shall endeavour to ensure that the proceedings are not
protracted. This subsection replicates subsection 93(2) of the Children and Young
Persons (Care and Protection) Act 1998 (NSW).

Section 69ZO ­ This Division also applies to proceedings in Chambers

347. New section 69ZO provides that all of the duties and powers conferred on a
`court' throughout Division 12A are also conferred on a Judge, Judicial Registrar,
Registrar, Federal Magistrate or magistrate who is hearing a child-related proceeding
in Chambers. This is to ensure that the provisions of Division 12A apply to any
proceedings or parts of proceedings that are heard in Chambers. Similar provisions
exist in other federal court legislation.

348. Subsection 97(1A) of the Act already makes provision for proceedings to be
heard by a judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate
sitting in Chambers where there is authorisation to do so in the regulations or the
applicable Rules.

349. The note to section 69ZO clarifies that an order made in Chambers has the same
effect as an order made in open court.

Section 69ZP ­ Powers under this Division may be exercised on court's own initiative

350. New section 69ZP provides that the court may exercise a power under Division
12A either on the court's own initiative or at the request of a party to the proceedings.
This gives the court flexibility in discharging its obligation to actively manage cases
in a way that encourages parents to focus on their child and on their ongoing
relationship as parents and without undue delay or formality. It ensures a more
inquisitorial approach by courts to resolving children's issues. This is appropriate
given that decisions must be made in the best interests of the child not just on the
position put to the court by the parties.

Subdivision C ­ Duties and powers related to giving effect to the principles

Section 69ZQ ­ General duties

351. New subsection 69ZQ(1) lists a number of general duties that the court must
carry out in giving effect to the principles in new section 69ZN. These will ensure
that cases are actively managed in a way that encourages parents to focus on their
child and on their ongoing relationship as parents and without undue delay or
formality. They will also ensure the proceedings are not protracted, and should help
to reduce the overall costs.

352. Paragraph 69ZQ(1)(a) provides that the court will need to decide which of the
issues identified in the application and in the proceedings actually require full
investigation and hearing, and which of these issues may be disposed of summarily.
As set out in paragraphs 69ZQ(1)(b) and (c), the court will also have to decide the



                                           66
order in which issues are to be decided and give directions about the timing of steps
that are to be taken in the proceedings. This will lead to better management of
proceedings.

353. There is a specific duty in paragraph 69ZQ(1)(d) to consider whether the likely
benefits of taking a step in the proceedings justify the costs of taking it. This could be
relevant in a situation where parties are proposing to use multiple experts or have
particular evidence given by a variety of witnesses. In such a situation, the court may
decide that only one of the witnesses proposed will be sufficient to establish a
particular fact in the case.

354. Paragraph 69ZQ(1)(e) requires the court to make appropriate use of technology,
such as video-link, audio-link, or other electronic technology. This provision
supplements the existing discretion to use such technology at Division 2 of Part XI of
the Act. This provision is intentionally wide, as it is difficult to predict the future
development of technology which may assist in family law proceedings.

355. Paragraph 69ZQ(1)(f) provides that the court will again need to consider
encouraging the parties to use a family dispute resolution or family counselling
process if the court considers that is appropriate. This reinforces the Government's
intention to ensure that family separations are dealt with outside the legal system
wherever that is possible. It is not intended that the court's role should be to mediate
or to take part in negotiations.

356. However, it is intended that the court carry out a more active role in creating
opportunities for successful negotiations to take place between the parties, which may
lead to consent orders being made during the proceedings on some or all of the issues
in dispute. This is consistent with new Subdivision E in Division 1 of Part VII of the
Act, inserted by item 9 of Schedule 1. This subdivision inserts new section 60I into
the Act which provides for compulsory attendance at family dispute resolution in a
range of circumstances, prior to lodging an application with the court. This is a key
change to encourage a culture of agreement making and avoidance of an adversarial
court system.

357. Paragraph 69ZQ(1)(g) provides that the court must deal with as many aspects of
the matter as the court can on a single occasion, in order to prevent parties having to
attend at more court events than is necessary. This will minimise the impact of the
proceedings on the child, and help to reduce costs for the parties.

358. Paragraph 69ZQ(1)(h) provides that the court must also consider dealing with
the matter without requiring the parties' physical attendance at court, where this is
appropriate. It is envisaged that parties may not need to attend court in two different
types of instances ­ (1) where the use of appropriate technology (eg video link)
removes the need for a party's physical attendance in the court, and (2) where the
court can make decisions on the papers (where this is appropriate) without it being
necessary for the court to hear more about the matter before making its decision. Any
decision made by the court to deal with a case without the parties would need to be
made in accordance with the principles of natural justice and procedural fairness.




                                           67
359. It is expected that these duties will be fulfilled by the court at an early stage of
proceedings in order to give effect to the principles behind this active case
management approach. For example, it is intended that as early as possible in the
proceedings the court will identify the issues in dispute and make directions to ensure
that the case proceeds as expeditiously as possible. However, it is recognised that the
exact time at which these duties are fulfilled will differ between courts exercising
jurisdiction under the Act and between cases.

360. A number of these general duties are modelled on the duties set out in Rule 1.4
of Part 1 of the United Kingdom Civil Procedure Rules (40th Update).

361. Subsection 69ZQ(2) provides that in giving effect to the five principles set out
in section 69ZN, the court is not limited to undertaking only what is required by
subsection 69ZQ(1). The court may give effect to the principles in other ways.

362. Subsection 69ZQ(3) provides that the court's failure to comply with subsection
69ZQ(1) will not invalidate an order.

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

363. Section 69ZR makes clear that the court can make findings of fact, determine a
matter arising in the proceeding, or make an order at any stage after the
commencement of proceedings. This is intended to encourage the court to consider
making findings throughout the hearing rather than leaving all findings to a
judgement at the end. This should assist in narrowing the issues between the parties
and better focus the proceedings on the key issues.

364. Subsection 69ZR(2) clarifies that this does not prevent the court making a
finding of fact, determining a matter arising in the proceeding, or making an order in
relation to a particular issue at the same time as making final orders.

365. To avoid any doubt, subsection 69ZR(3) clarifies that the making of a finding of
fact, determination or order under subsection 69ZR(1) is not a reason for a judge,
Judicial Registrar, Registrar, Federal Magistrate or magistrate to disqualify himself or
herself from a further hearing of the proceedings.

366. The aim of this section is to provide the court maximum flexibility in how it
determines the best management of a particular case.

Section 69ZS ­ Use of family consultants

367. Section 69ZS provides that at any time during child related proceedings, the
court may designate a family consultant as the family consultant in relation to the
proceedings. A family consultant so designated will have the functions described in
section 11A. The notes to section 69ZS provide signposts for readers to sections 11A
and 11F which are inserted by Schedule 4. These sections relate to the role of family
consultants in proceedings. This provision has been inserted to clarify that it is
envisaged that family consultants will play a much more active role in child-related



                                           68
proceedings than they traditionally have in other more adversarial proceedings. The
consultants will be a key resource for the decision-maker in resolution of the issues.

Subdivision D ­ Matters relating to evidence

Section 69ZT ­ Rules of evidence not to apply unless court decides

368. New section 69ZT is one of the key provisions in achieving less adversarial
court processes in child-related proceedings. It provides that the court must not apply
the rules of evidence referred to in subsection 190(1) of the Evidence Act in child-
related proceedings unless the court considers that the circumstances are exceptional
and it has taken into account the factors set out in paragraph 69ZT(3)(b).

369. The provisions referred to in subsection 190(1) of the Evidence Act set out the
general rules of evidence that apply to court proceedings. These are:

       (a)   Division 3 (General Rules about Giving Evidence), Division 4
             (Examination-in-Chief and Re-examination), and Division 5
             (Cross-Examination) of Part 2.1

       (b)   Parts 2.2 (Documents) and 2.3 (Other Evidence), and

       (c)   Parts 3.2 to 3.8 (including Hearsay, Opinion Evidence, Admissions,
             Evidence of Judgements, Credibility and Character).

2. Generally, these rules of the Evidence Act relate to the manner of giving
evidence, the method of proof of documents (or other evidence) and the exclusionary
rules. Specifically, these rules deal with the ways of giving evidence, examination-in-
chief and re-examination, cross-examination, proof of documents, other evidence,
hearsay evidence, opinion evidence, admissions, evidence of judgments and
convictions, tendency and coincidence, credibility and character.

3. It is intended that in each child-related proceeding, the court may, if it considers
that the circumstances are exceptional, apply these rules of evidence on an issue by
issue basis in the proceedings. This means that, in some proceedings, some of these
rules of evidence may be applied in relation to some parts of the proceeding but not
others. It may also mean that in some proceedings, no rules of evidence are applied.

4. Subsection 69ZT(2) clarifies that a court may give such weight, if any, as it thinks
fit to evidence admitted as a consequence of the Evidence Act not applying due to the
operation of subsection 69ZT(1). It is appropriate that the court has this discretion
where evidence is admitted that would be inadmissible if not for the waiver of the
rules of evidence. This makes it clear that the court has flexibility to determine the
probative value of material that it relies upon even where the rules of evidence would
not otherwise apply.

5. Paragraph 69ZT(3)(b) provides that, when deciding whether to apply one or more
of the specified provisions of the Evidence Act to an issue in child-related
proceedings, the court must take into account a number of factors. These include the



                                           69
importance of the evidence in the proceedings, the nature of the subject matter of the
proceedings, the probative value of the evidence and the powers of the court to
adjourn the hearing, to make another order or to give a direction in relation to the
evidence. These factors are found in subsection 190(4) of the Evidence Act. Their
inclusion also implements recommendation 37 of the LACA report. The Committee
was of the view that requiring the court to take these factors into account when
deciding whether it should apply the rules of evidence in child-related proceedings
would provide greater surety of justice for the parties to the proceedings.

6. The high threshold for applying the rules of evidence is appropriate as the waiving
of the specified provisions of the Evidence Act is an integral element of the active
judicial management necessary to achieve less adversarial court processes in child-
related proceedings. It also implements recommendation 37 of the LACA report.
However, the court is left with the discretion to apply the rules of evidence in the
appropriate case where the threshold is reached. For example the test of `exceptional'
may be met in a serious contravention case where the court is considering a criminal
penalty such as imprisonment. It may be appropriate to apply the rules of evidence to
such a proceeding due to the gravity of the potential outcome. Even where rules of
evidence are applied, other factors related to child-related proceedings can continue to
operate, in particular the case management approach.

7. Subsection 69ZT(4) clarifies that a court may give such weight, if any, as it thinks
fit to evidence that is admitted as a consequence of its decision to apply a provision of
the Evidence Act listed in subsection 69ZT(1). This makes clear the flexibility of the
court in the consideration of these issues.

8. Subsection 69ZT(5) puts beyond doubt that the waiver of provisions of the
Evidence Act under subsection 69ZT(1), does not revive the operation of a rule of
common law or a law of a State or Territory that would have been prevented from
operating because of those provisions. The intention is for the court not to apply such
rules in child-related proceedings. Where the court considers that the circumstances
are exceptional and that it is necessary in all the circumstances to do so, the court may
apply one or more of the provisions of the Evidence Act mentioned in subsection
69ZT(1).

Section 69ZU ­ Evidence of family consultants

9. Subsection 69ZU provides that, without the agreement of the parties, the court
must not take any opinions expressed by a family consultant into account in
determining the issues in a case, unless such opinions are given as part of sworn
evidence in a case. This clarifies the status of what is said by a family consultant on
the occasions when a Judge chooses to include them in the proceedings. The
functions of family consultants are set out in new Part III of the Act inserted by
Schedule 4. The court may appoint a family consultant prior to or during the
proceedings with a view to assisting the parties to have a better understanding of the
effect that particular issues or behaviours may have on a child from a social science
perspective. The family consultant should also be able to provide parents with
information on programs or services that may assist them.




                                           70
Section 69ZV ­ Evidence of children

10. Section 100A from Part XI (Procedure and Evidence) of the Act has been
repealed and relocated to the new Division 12A in Part VII, and is now the new
section 69ZV. It has been moved to the new Division because it relates to evidence in
children's proceedings under Part VII.

11. Section 69ZV provides that, despite any other Act or rule of law, evidence of a
representation made by a child about a matter that is relevant to the welfare of the
child or another child, which would not otherwise be admissible as evidence because
of the law against hearsay, is not inadmissible solely because of the law against
hearsay in any child-related proceedings. A `representation' includes an express or
implied representation which can be either oral or in writing, and a representation
inferred from conduct - see subsection 69ZV(5).

12. While the effect of 69ZV is that, in many cases, rules of evidence including the
hearsay rule would not apply in child-related proceedings, section 69ZV is necessary
in those exceptional cases where a court considers that it is necessary to apply rules of
evidence. In those cases, the rules related to hearsay will still not be relevant in
relation to evidence of representations made by a child. This provision is particularly
relevant for the role of independent children's lawyers.

13. The effect of subsection 69ZV(5) is to confine the application of this provision to
children under 18. This is appropriate as after attaining the age of 18 the child in
question would be able to provide evidence to the court directly. Other parts of Part
VII, such as provision of child maintenance, do apply to children who are over 18 in
certain circumstances.

Section 69ZW ­ Evidence relating to child abuse or family violence

14. Section 69ZW gives the court the power to make an order in child-related
proceedings requiring a prescribed State or Territory agency to provide the court with
documents which contain information about one or more of the following:

       ·   any notifications to the agency of suspected abuse of the child or family
           violence affecting the child
       ·   any assessments by the agency of investigations into a notification of that
           kind,
       ·   any reports commissioned by the agency in the course of investigating a
           notification.

15. The prescribed agencies will include the child welfare agencies of the States and
Territories and police departments as they are likely to be the agencies which would
conduct investigations and hold reports related to issues of child protection and family
violence. They will be prescribed in the Family Law Regulations 1984. Section
69ZW implements recommendation 11 of the LACA Committee. The intention is to
ensure that where allegations of violence or abuse are made, the court has as much
information as possible relevant to those allegations when making a determination
about what is in the best interests of the child.


                                           71
16. Subsection 69ZW(3) clarifies that nothing in the order is to be taken to require
the agency to provide the court with documents or information not in the possession
or control of the agency; or documents or information that include the identity of the
person who made the notification. If the agency does provide documents or
information that include the identity of the person who made the notification,
disclosure of these documents or information can only be made in the circumstances
set out in subsection 69ZW(6).

17. Subsection 69ZW(4) ensures that a law of a State or Territory has no effect to the
extent that it would hinder or prevent an agency from complying with the order. The
intention is that subsection 69ZW(4) will prevail to the extent of any inconsistency
between it and the law of a State or Territory. This will ensure that courts exercising
family law jurisdiction are able to compel the same information from all States and
Territories in spite of the differences in their child welfare legislation.

18. This is intended to assist the court to overcome issues that arose in the case of
Northern Territory v GPAO and others (1998) 196 CLR 553. In this case the High
Court found that the existing provisions of the Act did not override provisions in the
Northern Territory child welfare legislation such that the Family Court of Australia
could not compel the Northern Territory welfare authority to produce any documents
it held concerning the protection of a child who was the subject of a parenting case.
This decision has limited the evidence available to the court to determine what is in a
child's best interests in some cases. Section 69ZW will address this and extend to
information about family violence.

19. Subsection 69ZW(5) provides that the court must admit into evidence any
documents or information provided in response to the order on which the court
intends to rely. This ensures that where the court intends to rely on information it has
received relating to an allegation of abuse or violence, the parties are aware of the
information or allegation and have an opportunity to respond. This is in accordance
with principles of natural justice.

20. Subsection 69ZW(6) provides that where an agency has provided documents or
information that include the identity of the person who made the notification of
suspected abuse or family violence, the court must not disclose the identity of the
person unless he or she consents to the disclosure or the court is satisfied that the
identity or information is critically important to the proceedings and that failure to
make the disclosure would prejudice the proper administration of justice. This
provision is found in section 29 of the Children and Young Persons (Care and
Protection) Act 1998 (NSW). It recognises that it is a matter of public policy that the
identity of a notifier should be protected in most circumstances to ensure that there is
no disincentive to notification of child protection issues.

21. Subsection 69ZW(7) ensures that before any disclosure is made under
subsection 69ZW(6), the agency that provided the identity of the person who made
the notification is notified and given an opportunity to respond. This provision
addresses the concerns expressed by some State agencies about the sensitivities in
release of the identity of the notifier. In most cases the identity of the notifier will not



                                            72
be relevant - what is relevant is what the findings were about the child protection
issue. Protection of the identity of the notifier ensures that there is no disincentive to
report suspected child protection issues. This will ensure that there is an appropriate
process to assess that the information is critically important and that failure to make
the disclosure would prejudice the proper administration of justice.

Section 69ZX ­ Court's general duties and powers relating to evidence

22. Section 69ZX sets out the court's general duties and powers relating to evidence.

23. Subsection 69ZX(1) sets out a list of actions that the court may carry out in
giving effect to the five principles for conducting child-related proceedings in section
69ZN. This provision supplements the duties in section 69ZQ which must be
followed in giving effect to the principles and to ensure active management of
children's matters to minimise the effect of the proceedings on children and to
promote a cooperative parenting relationship between parents.

24. The list of actions in subsection 69ZX(1) includes the court giving directions or
making orders about:

       ·   the matters in relation to which the parties are to present evidence
       ·   who is to give evidence in relation to each remaining issue
       ·   how particular evidence is to be given, and
       ·   if the court considers that expert evidence is required:
            - the matters in relation to which an expert is to provide evidence
            - the number of experts who may provide evidence in relation to a matter,
              and
            - how an expert is to provide the expert's evidence.

25. Paragraph 69ZX(1)(e) also gives the court the power to question and seek
evidence or the production of documents or things from parties, witnesses and experts
on matters relevant to the proceedings.

26. Subsection 69ZX(2) provides a non-exhaustive list of further types of directions
and orders that the court may make in child-related proceedings. This list is not
intended to limit the actions that the court may make under subsection 69ZX(1) in
giving effect to the principles for conducting child-related proceedings set out in
section 69ZN. The list is also not intended to limit section 69ZR, which is the
section that clarifies that the court may make determinations, findings and orders at
any stage of the proceedings.

27. Under subsection 69ZX(2) the court may make directions or orders:




                                           73
       ·   about the use of written submissions
       ·   about the length of written submissions
       ·   limiting the time for oral argument
       ·   limiting the time for the giving of evidence
       ·   that particular testimony is to be given orally
       ·   that particular evidence is to be given by affidavit
       ·   that evidence in relation to a particular matter not be presented by a party
       ·   that evidence of a particular kind not be presented by a party
       ·   limiting, or not allowing, cross-examination of a particular witness, or
       ·    limiting the number of witnesses who are to give evidence in the
            proceedings.

28. A number of these provisions come from the United Kingdom Civil Procedure
Rules (40th Update). They are intended to allow the court to play a much greater role
in managing the conduct of the proceedings.

29. Subsection 69ZX(3) inserts a modified version of section 86 of the Native Title
Act 1993. It provides that the court may, in child-related proceedings, receive into
evidence the transcript of evidence in any other proceedings before a court or tribunal
and draw any conclusions of fact from the transcript that it thinks proper. The court
may also adopt any recommendation, finding, decision or judgment of any court or
tribunal.

30. This amendment implements recommendation 5 of the Family Law Council's
December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait
Islander Child-Rearing Practices: Response to Recommendation 22: Pathways
Report, Out of the Maze. The Report found that such a provision could provide a
court with the flexibility to draw on relevant evidence adduced in other proceedings
in other courts to inform decision-making in the best interests of the child pursuant to
subsection 68F(2). It suggested that, in the case of an Aboriginal or Torres Strait
Island child, such an approach would assist a court in informing itself of the content
of the relevant kinship obligations and child-rearing practices wherever such reliable
information exists. In this regard, the provision is relevant to new section 61F
(inserted by item 14 in Schedule 1) which requires the court to have regard to the
kinship obligations and child-rearing practices that are relevant to an Aboriginal or
Torres Strait Islander child.

31. This provision does not apply only to proceedings concerning an Aboriginal or
Torres Strait Islander child. It applies to all child-related proceedings. In this respect,
the provision implements recommendation 48 of the LACA Report. The Committee
was of the view that extending the provision to all children would be helpful and may
assist in addressing issues surrounding claims of family violence and abuse. The note
to subsection 69ZX(3) clarifies that the subsection may be particularly relevant for
Aboriginal or Torres Strait Islander children.




                                            74
Item 5 ­ Section 100A

32. Item 5 repeals section 100A of Part XI of the Act, and relocates the content of
section 100A to new section 69ZV. It is being moved because it only related to
evidence in children's proceedings under Part VII.

33. A number of other provisions in Part XI of the Act will apply to the new
Division, however because they relate not only to Part VII proceedings but also to
other proceedings under the Act, they will remain in their current position in Part XI.

Item 6 ­ At the end of section 102A

34. Item 6 inserts a note at the bottom of section 102A in Part XI of the Act. This
section deals with the restrictions on the examination of children. In particular,
subsection 102A(4) deals with the circumstances where the court may admit evidence
that is otherwise inadmissible. The note clarifies that new section 69ZV (previously
section 100A) is relevant to evidence of a representation by a child if the
inadmissibility of the evidence would otherwise be affected by the law against
hearsay.

Item 7 ­ Part XI (heading)

35. Item 7 adds a note after the heading for Part XI of the Act, which deals with
procedure and evidence, to clarify that new Division 12A of Part VII has provisions
about procedure and evidence that apply to child-related proceedings. This is to assist
self-represented litigants, and readers generally, locate relevant provisions in the Act.

Part 2 ­ Application of amendments

Item 8 ­ Application of amendments

36. Item 8 provides that the amendments in Part 1 of this Schedule will apply to
child-related proceedings commenced by an application filed on or after 1 July 2006.




                                           75
SCHEDULE 4 ­ CHANGES TO DISPUTE RESOLUTION AND FAMILY
SERVICES


37. Schedule 4 of the Bill amends the counselling and dispute resolution provisions
in the Act to support the Government's policy of ensuring that separating and
divorcing parents have access to quality counselling and dispute resolution services
without the need to go to court. In particular, the distinction between family
counselling and family dispute resolution, as set out in sections 10B and 10F at Item
32, facilitates the introduction of compulsory dispute resolution for most parents
seeking an order under Part VII of the Act (as provided by section 60I, at Item 9 of
Schedule 1).

38. Schedule 4 also distinguishes services available in the community from those
provided by the courts, to assist in clarifying the different roles played by each in
assisting people affected by separation and divorce.

39. A framework for the accreditation of family counsellors, family dispute
resolution practitioners and workers in other Australian Government funded family
services is also inserted by the Bill. Competency-based accreditation standards, are
currently being developed by the Community Services and Health Industry Skills
Council (CSHISC). The accreditation standards, expected to be in place by mid-
2006, will form the minimum requirements for family counsellors, family dispute
resolution practitioners and other services, and provide a mechanism for ensuring the
quality of family services provided in the family law system.

40. Provisions in the Act that relate to counselling or dispute resolution which are
outdated, unnecessary, or which do not reflect current practice or government policy
are amended or removed by Schedule 4.

41. Schedule 4 also introduces amendments to assist in protecting the names of
services funded by the Government to provide assistance and support to people in the
family law system, and the symbols (or logos) used to identify these services. This
protection is needed in order to ensure that the public is not misled as to the nature of
services being provided in the family law system.

42. Consistent and consequential changes are made to the Federal Magistrates Act
1999, the Income Tax Assessment Act 1997 and the Marriage Act 1961.

Part 1 ­ Changes to approval of organisations

43. Currently, Part II of the Act sets out the process for the approval of counselling
and mediation organisations. The amendments in this Part will remove the
requirement that only organisations that are voluntary (that is, organisations that
operate on a non-profit basis) will be able to apply to the Minister for approval and
funding as a counselling or mediation organisation.

44. This reflects the Government's policy intention that a wide range of organisations
be able to apply for approval and funding as a counselling or mediation organisation.
As the first 15 Family Relationship Centres are expected to commence operation in
mid-2006, the amendments made in this Part must take place as soon as possible to


                                           76
allow funding to be provided if an organisation other than a voluntary organisation
applies for and is selected to receive funding.

45. Existing approved services will not be affected by the changes to the approval
process as transitional arrangements for these organisations are provided in Part 4 of
Schedule 4.

Item 1: Subsection 4(1) (definition of voluntary organisation)

46. Currently only a `voluntary organisation' (that is, an organisation that operates on
a non-profit basis) is eligible for approval by the Minister as an approved counselling
organisation (under section 13A) and/or an approved mediation organisation (under
section 13B). As this requirement is proposed to be removed by the Bill (see items
150 and 153), the definition of `voluntary organisation' is no longer required in the
Act. Accordingly, this item repeals the definition of `voluntary organisation'.

Items 2 and 5: Subsection 13A(1) and 13B(1)

47. Sections 13A and 13B of the Act set out the process by which organisations may
gain the approval of the Minister as `approved counselling organisations' or
`approved mediation organisations' under the Act.

48. Currently, a `voluntary organisation' (that is, an organisation that operates on a
non-profit basis) may apply to the Minister for approval as a counselling organisation
(subsection 13A(1)) or as a mediation organisation (subsection 13B(1)).

49. These items repeal subsections 13A(1) and 13B(1). The repeal will allow any
organisation (whether operating on a non-profit basis or not) to be approved and
receive funding as a counselling or mediation organisation. The requirement to apply
for approval or funding will also be removed from the Act but this will not limit the
ability of the Government to call for applications for organisation to be approved or
receive funding for particular services.

Items 3 and 6: Subsections 13A(2) and 13B(2)

50. These items make a minor consequential amendment as a result of the repeal of
subsection 13A(1) by item 2 and subsection 13B(1) by item 5.

Items 4 and 7: Paragraphs 13A(2)(b) and 13B(2)(b)

51. Currently subsections 13A(2) and 13B(2) of the Act provide that the Minister
may approve an organisation as a counselling or mediation organisation only if he or
she is satisfied that:

   ·   the organisation is willing and able to engage in family and child counselling,
       and

   ·   the whole, or a substantial part, of the organisation's activities consist, or will
       consist, of family and child counselling.




                                           77
52. These items amend subsection 13A(2) and 13B(2) to remove the requirement for
family and child counselling or family and child mediation to form `the whole or a
substantial part' of the organisation's activities in order for that organisation to be
approved under the Act. The new requirement will be that the organisation's
activities `include, or will include' family and child counselling or family and child
mediation (as appropriate).

53. This amendment recognises that many organisations offer a range of services to
people requiring assistance, including family and child counselling, family and child
mediation, social work etc and it may not be possible to characterise any single
element of these services as comprising the whole, or a substantial part of that
organisation's activities.

Part 2 ­ Protection of names

Family Law Act 1975

Item 8: After Part 1

Part 1A ­ Protection of Names

54. This item inserts a new Part 1A into the Act. This Part will ensure that the names
of services funded by the Government to provide assistance and support to people in
the family law system (such as Family Relationship Centres), and the symbols (or
logos) used to identify these services are not used in an unauthorised manner that
might mislead or deceive the public.

55. As the field of family law is a highly emotional area in which people may not
always be in a position to objectively or thoroughly assess the credentials of service
providers, consumer protection is of critical importance.
Section 9A     Use of protected names and symbols

56. Section 9A is designed to ensure the public is not misled by unauthorised use of
names or symbols that designate services funded by the Government (for example,
Family Relationship Centres).

57. A person must not use or apply a `protected name' (or a name so closely
resembling a protected name as to be likely to be mistaken for it) or a `protected
symbol' (or a symbol so closely resembling a protected symbol as to be likely to be
mistaken for it) in the manner specified in subsection 9A(1) without the Minister's
written consent. The penalty for a breach of this provision is 30 penalty units. (The
value of a `penalty unit' is set out at section 4AA of the Crimes Act 1914. It is
currently $110. Thus the penalty for a breach of section 9A is a fine of $3,300).

58. The protected names and protected symbols will be prescribed in the Regulations.

59. This section does not affect rights conferred by law on a person in relation to a
registered trademark or a design registered under the Designs Act 2003, that was
registered immediately before the commencement of the regulation prescribing a
protected name or protected symbol.


                                          78
60. Additionally, this section does not affect the use, or rights conferred by law
relating to the use, of a name or symbol by a person in a particular manner if,
immediately before the commencement of the regulation prescribing a protected name
or protected symbol, that person:

           61. was using that name or symbol in good faith in that manner, or
           62. would have been entitled to prevent another person from passing off
               goods or services as the goods or services of the first-mentioned
               person, by means of the use of that name or symbol.

Part 3 ­ Changes to dispute resolution

Family Law Act 1975

Item 9: Subsection 4(1)

63. This item moves the definition of `abuse, in relation to a child', which currently
appears in sections 19N, 60D, 62F and 70NI of the Family Law Act 1975 (the Act)
into section 4 of the Act. Section 4 of the Act, Interpretation, contains definitions of
terms used throughout the Act. The inclusion of the definition of `abuse' in this
section assists in consolidating definitions employed in the Act. This should assist
users of the Act to interpret and understand the legislation, as the Interpretation
section is the logical reference point for those seeking clarification of terms used in
the Act.

64. The definition of abuse is unchanged from that currently employed in the Act.
The definition limits the meaning of `abuse' in relation to a child in the Act to
unlawful assault and child sexual abuse.

65. A wider concept of `harm' is introduced in sections 10C and 10K of the Bill.
These sections provide that family counsellors and family dispute resolution
practitioners, respectively, must disclose communications made to them in their
professional capacity where the disclosure is considered necessary to protect a child
from the risk of harm, whether physical or psychological.

Item 10: Subsection 4(1)

66. This item inserts a definition of `Accreditation Rules' into subsection 4(1) of the
Act. This definition provides that `Accreditation Rules' refers to the regulations made
under section 10A.

Item 11: Subsection 4(1) (definition of approved counselling organisation)

67. Currently the Attorney-General may approve counselling organisations under
section 13A of the Act. As set out in relation to section 10A, in order to ensure the
quality of services delivered by family counsellors, family dispute resolution
practitioners and workers in Government funded children's contact services,
competency-based Accreditation Rules are currently being developed by the CSHISC.
The Accreditation Rules will form the minimum requirements for family counsellors,
family dispute resolution practitioners and workers in funded children's contact


                                           79
services and will largely replace the current situation where family and child
counsellors are able to be authorised by approved organisations. As a result of this
change, and the removal of the requirement for organisations to be approved before
they may be funded under the Act due to the repeal of section 13H of the Act,
approved organisations will no longer serve any purpose and will be removed from
the Act by the Bill. Accordingly, this item repeals the definition of approved
counselling organisation.

68. To ensure that professionals who are currently delivering family and child
counselling and family and child mediation are able to continue to offer these services
(which are termed `family counselling' and `family dispute resolution' under the Bill
­ see sections 10A and 10H in this Schedule) without interruption on the introduction
of the accreditation regime a transition period is provided, during which the Attorney-
General will continue to have power to approve organisations, as set out in Part 4 of
this Schedule. (Item 118 provides that the transition period begins at the time Part 3
of this Schedule commences (this is a date to be fixed by Proclamation, and is
expected to be 1 July 2006) and ends on the day prescribed by regulations made for
the purpose of this definition. It is anticipated that the transition period will be at
least three years in duration.)

Item 12: Subsection 4(1) (definition of approved mediation organisation)

69. Currently the Attorney-General may approve mediation organisations under
section 13B of the Act. As set out in relation to section 10A, in order to ensure the
quality of services delivered by family counsellors, family dispute resolution
practitioners and workers in Government funded children's contact services,
competency-based Accreditation Rules are currently being developed by the CSHISC.
The Accreditation Rules will form the minimum requirements for family counsellors,
family dispute resolution practitioners and workers in funded children's contact
services and will largely replace the current situation where family and child
counsellors are able to be authorised by approved organisations. As a result of this
change, and the removal of the requirement for organisations to be approved before
they may be funded under the Act due to the repeal of section 13H of the Act,
approved organisations will no longer serve any purpose and will be removed from
the Act by the Bill. Accordingly, this item repeals the definition of approved
mediation organisation.

70. To ensure that professionals who are currently delivering family and child
counselling and family and child mediation are able to continue to offer these services
(which are termed `family counselling' and `family dispute resolution' under the Bill
­ see sections 10B and 10F in this Schedule) without interruption on the introduction
of the accreditation regime a transition period is provided, during which the Attorney-
General will continue to have power to approve organisations, as set out in Part 4 of
this Schedule. (Item 118 provides that the transition period begins at the time Part 3
of this Schedule commences (this is a date to be fixed by Proclamation, and is
expected to be 1 July 2006) and ends on the day prescribed by regulations made for
the purpose of this definition. It is anticipated that the transition period will be at
least three years in duration.)

Item 13: Subsection 4(1)


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71. This item inserts a definition of `arbitration' into Section 4 of the Act, the
Interpretation section. The definition of `arbitration' inserted here directs the reader
to section 10S, where the full definition of the term is set out. This approach has been
taken as the definition of arbitration is best read in context with the definition of
`arbitrator' (which appears in section 10T) and for consistency with the approach
taken in relation to family counselling and family dispute resolution (at Divisions 1
and 2 of new Part II) . The marker definition has been placed in subsection 4(1) as
those accessing the Act will often consult this general Interpretation section when
seeking guidance on terms employed in the Act.

72. No substantive changes have been made to the arbitration provisions of the Act.

Item 14: Subsection 4(1) (definition of arbitrator)

73. This item repeals the current definition of `arbitrator' and inserts a new definition
of `arbitrator' into Section 4 of the Act, the Interpretation section. The definition of
`arbitrator' inserted here directs the reader to section 10T, where the full definition of
the term is set out. This approach has been taken as the definition of arbitrator is best
read in context with the definition of `arbitration' (which appears in section 10S) and
for consistency with the approach taken in relation to family counselling and family
dispute resolution (at Divisions 1 and 2 of new Part II). The marker definition has
been placed in subsection 4(1) as those accessing the Act will often consult this
general Interpretation section when seeking guidance on terms employed in the Act.

74. No substantive changes have been made to the arbitration provisions of the Act.

Items 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28 and 31: Subsection 4(1)
(repeal definitions of child counselling, community mediator, court counsellor,
court mediator, family and child counselling, family and child counsellor, family
and child mediation, family and child mediator, marriage counselling, private
mediator and insert definitions of family counselling, family counsellor, family
dispute resolution, family dispute resolution practitioner)

75. At present the Act uses the umbrella term `primary dispute resolution' to cover
almost every form of non-judicial intervention in family conflicts, including
counselling, mediation and arbitration. The term is poorly understood in the
community and its use in the legislation makes it difficult to differentiate specific
types of intervention.

76. To assist understanding, the Bill removes the term `primary dispute resolution'
and clearly identifies more specific forms of intervention. As part of this change, the
terms in these items will be removed from the Act and new terms `family counselling'
(section 10A) and `family dispute resolution' (section 10H) will be introduced.

77. The amendment made by these items add the definitions of `family counselling',
`family counsellor', `family dispute resolution' and `family dispute resolution
practitioner' to direct the reader to sections 10A, 10B, 10H and 10J respectively
where the full definitions of the terms are set out. The marker definitions have been
placed in subsection 4(1) as those accessing the Act will often consult this general
Interpretation section when seeking guidance on terms employed in the Act.


                                           81
Item 23: Subsection 4(1)

78. The court is moving to a process in which a `family consultant' will be assigned
to each case in the court involving children, and will manage the case, providing a
continuing service, as it moves through the court process. The new Part III of the Bill
deals with the functions of `family consultants', who will be appointed by the Family
Court of Australia, the Family Court of Western Australia or the Federal Magistrates
Court.

79. This item inserts a definition of `family consultant' into Section 4 of the Act, the
Interpretation section. The definition of `family consultant' inserted here directs the
reader to section 11B, where the full definition of the term is set out. This approach
has been taken as the definition of family consultant is best read in context with the
functions of family consultants, so it appears in a section alongside this term. The
marker definition has been placed in subsection 4(1) as those accessing the Act will
often consult this general Interpretation section when seeking guidance on terms
employed in the Act.

Item 29: Subsection 4(1)

80. `Post-separation parenting program' is currently defined at subsection 65LA(3)
and section 70NB of the Act. The current definition includes a reference to a list of
`post-separation parenting program providers' that is kept by the Attorney-General's
Department. As this list has no relation to the quality of services provided, it has little
value and is being removed from the Act. As a result the definition of `post-
separation parenting program' has been amended to remove the reference to `a
provider'. Instead the quality of services provided by post-separation parenting
programs will be addressed by requiring these services to be funded by the Australian
Government (whether directly or as a member of a consortium). Accountability
requirements set out in the Government's funding agreements will assist in ensuring a
level of quality in the services that are provided by organisations providing such post-
separation parenting programs.

81. The new definition of `post-separation parenting program' has been placed in
subsection 4(1) as those accessing the legislation will often consult this general
Interpretation section when seeking guidance on terms employed in the Act.

Item 30: Subsection 4(1) (definition of private arbitration)

82. Currently the Act refers to arbitration as `private arbitration' and `section 19D
arbitration'. The term `private arbitration' is not sufficiently explanatory, and may
mislead, to the extent that it implies that the court has no involvement. In order to
address these issues this item repeals the definition of `private arbitration'. It is
replaced by the term `relevant property and financial arbitration', which is defined at
paragraph 10S(2)(b). This new term assists understanding by clearly stating the types
of issues that may be dealt with in arbitration.




                                            82
Item 32: Subsection 4(1)

83. Currently the Act refers to arbitration as `private arbitration' and `section 19D
arbitration'. The term `private arbitration' is not sufficiently explanatory, and may
mislead, to the extent that it implies that the court has no involvement. In order to
address these issues the term `private arbitration' is replaced by the term `relevant
property and financial arbitration'. This new term assists understanding by clearly
stating the types of issues that may be dealt with in arbitration.

84. This item inserts a definition of `relevant property or financial arbitration' into
Section 4 of the Act, the Interpretation section. The definition of `relevant property
or financial arbitration' inserted here directs the reader to subsection 10S(2), where
the full definition of the term is set out. This approach has been taken as the
definition of `relevant property or financial arbitration' is best read in context with the
definition of `arbitration' in order to be properly understood, so it appears in a section
alongside these terms. The marker definition has been placed in subsection 4(1) as
those accessing the Act will often consult this general Interpretation section when
seeking guidance on terms employed in the Act.

85. No substantive changes have been made to the arbitration provisions of the Act.

Item 33: Subsection 4(1)

86. Currently the Act refers to arbitration as `private arbitration' and `section 19D
arbitration'. The term `private arbitration' is repealed by Item 30 and replaced by
`relevant property or financial arbitration', a definition of which is inserted by Item
27.

87. In order to simplify the Act, current Parts II and III of the Act are deleted and
replaced by a new structure that groups provisions relating to non-judicial
interventions logically, by topic. This restructure of the Act involves the repeal,
modification, relocation and/or renumbering of current sections relating to
counselling, dispute resolution and arbitration. As a result of this restructure section
19D has been removed from the Act. The substance of section 19D has been placed
in new section 13E.

88. To reflect this change, this item inserts a definition of `section 13E arbitration'
into Section 4 of the Act, the Interpretation subsection 10S(2), where the full
definition of the term is set out. This approach has been taken as the definition of
`s13E arbitration' is best read in context with the definition of `arbitration' in order to
be properly understood, so it appears in a section alongside these terms. The marker
definition has been placed in subsection 4(1) as those accessing the Act will often
consult this general Interpretation section when seeking guidance on terms employed
in the Act.

89. No substantive changes have been made to the arbitration provisions of the Act.

Item 34: Subsection 4(1) (definition of welfare officer)

90. The court is moving to a process in which a `family consultant' will be assigned
to each case in the court involving children, and will manage the case, providing a


                                            83
continuing service, as it moves through the court process. The new Part III of the Bill
deals with the functions of `family consultants', who will be appointed by the Family
Court of Australia, the Family Court of Western Australia or the Federal Magistrates
Court. The functions of family consultants are set out at section 11A. These
functions include those that are currently performed by welfare officers (eg providing
family reports). As a result, the definition of welfare officer is no longer needed, and
is repealed by this item.

91. The Bill does not affect the role played by `child welfare officers' (as defined at
s60D of the Act) who provide child protection services for the States and Territories.

Item 35: After subsection 4(1)

92. This item inserts a definition of the phrase `a person or people involved in
proceedings' in subsection 4(1AA) of the Act. The Bill does not impose any
obligations on `people involved in proceedings'. The use of the term allows
assistance to be given to people, including children, who may be affected by the
proceedings, but who are not actually parties to the proceedings.

93. The phrase `a person or people involved in proceedings' is used in the following
provisions of the Bill:
           o Section 11A of the Act ­ provides that the functions of family
             consultants include `assisting and advising' people involved in
             proceedings, and helping them to resolve their disputes.
           o Subsection 12F(2) of the Act ­ requires the principal executive officer
             of a court with jurisdiction under the Act to provide information
             documents on family counselling and family dispute resolution to a
             person involved in proceedings, if requested. (Under subsection
             12F(1) the court has an obligation to give information documents to
             anyone considering instituting proceedings, without being asked to do
             so).
           o Subparagraph 123(1)(s)(iii) of the Act ­ allows rules of court to be
             made in relation to the giving of advice and assistance by family
             consultants (as per section 11A).
           o Subparagraph 123(1)(sd)(iii) of the Act ­ allows rules of court to be
             made in relation to the procedures to be followed by people involved
             in proceedings when receiving services from a family consultant (as
             per section 11A).
           o Paragraph 87(2)(c) of the Federal Magistrates Act 1999 - allows rules
             of court to be made for the Federal Magistrates Court in relation to the
             giving of advice and assistance by family consultants (as per section
             11A of the Act).

Item 36: Parts II and III

94. In order to simplify the Act, Parts II and III of the Act are repealed and replaced
by a new structure that groups provisions relating to non-judicial interventions
logically, by topic. New Part II will deal with non-court based services (including
accreditation, family counselling, family dispute resolution and arbitration). New


                                           84
Part III will deal court based services (also known as family consultants). New Part
IIIA will deal with obligations to inform people about non-court based services and
the court's procedures. New Part IIIB will set out the court's powers in relation to
court and non-court based family services

95. This will assist users of the Act by consolidating all provisions dealing with a
particular area (for example, the obligations imposed on various groups to inform
people about non-judicial interventions available to assist those in the family law
system) in one place within the Act.

Section 10A Accreditation Rules

96. In order to ensure the quality of services delivered by family counsellors, family
dispute resolution practitioners and workers in Government funded children's contact
services section 10A provides that the Regulations may set out Accreditation Rules
relating to these workers.

97. Competency-based accreditation standards are currently being developed by the
Community Services and Health Industry Skills Council (CSHISC) and are expected
to form the minimum requirements for the standards in the Accreditation Rules to be
met by family counsellors, family dispute resolution practitioners and workers in
funded children's contact services.

98. The requirements of the Accreditation Rules will apply to individual practitioners
and will replace the current situation where family and child counsellors and family
and child mediators are either authorised by the court or an approved organisation.

99. To ensure that professionals who are currently delivering family and child
counselling and family and child mediation are able to continue to offer these services
(which are termed `family counselling' an `family dispute resolution' under the Bill ­
see sections 10B and 10F, above) without interruption on the introduction of the
accreditation regime, a period of time, referred to as the `transition period' will be
given during which courts, approved organisations and organisations designated by
the Attorney-General will be able to authorise family counsellors and family dispute
resolution practitioners. Professionals so authorised will be taken to be accredited
during the transition period.

100. In the transition period the Attorney-General will retain the ability to approve
family counselling and family dispute resolution organisations (although the
prerequisites for, and process of, approval, will be amended as per Part 4 of this
Schedule). At the cessation of the transition period the concept of `approved
organisations' will be removed from the Act. From that time all family counsellors
and family dispute resolution practitioners will need to meet the accreditation
standards prescribed in the Regulations.

101. Subsection 10A(2) sets out examples of matters that the Accreditation Rules
may deal with. It is expected that not all of the possible examples will form
requirements for all categories of workers, or that all the listed examples will
necessarily form part of the Regulations.




                                          85
102. For example, it is expected that accredited family dispute resolution
practitioners will need to be registered as the court and other services will need to
know to whom they can refer clients to receive family dispute resolution. Accredited
family dispute resolution practitioners are the only category of worker that will be
able to provide certificates under section 60I of the Act. Section 60I provides that a
court must not hear an application for a parenting order unless (subject to some
exceptions) the applicant files a certificate from a family dispute resolution
practitioner that states that the applicant has attended family dispute resolution, or that
the applicant did not attend, but this failure was due to the failure of the other party to
attend.

103. Similarly, only accredited family counsellors or family dispute resolution
practitioners are able to provide the information required under section 60J (which
provides that where a person is not required to attend dispute resolution due to child
abuse or family violence, the court must not hear an application for a parenting order
unless the applicant makes a declaration that a family counsellor or family dispute
resolution practitioner has provided him or her with information on the services and
options available).

104. As a result of the demand for family counselling and family dispute resolution
services that may flow from these sections (and from the Government's family law
reforms more broadly) unscrupulous professionals may seek to deceive members of
the public as to their accreditation status. Protection of consumers from dishonest
behaviour is always important, and is especially crucial in family law, as it is a highly
emotional area in which people may not always be in a position to objectively or
thoroughly assess the credentials of service providers. For this reason, the
Accreditation Rules may deal with individuals or organisations who make false or
misleading representations about a person's accreditation status.

Part II - Division 2 ­ Family counselling

Section 10B    Definition of family counselling

105. Currently `family and child counselling' contains elements of processes
concerned both with psychological health and relationships issues and those that aim
to resolve disputes (including conciliation ­ see section 10F for further information).
The two types of processes needed to be clearly delineated in order to allow the
successful introduction of compulsory dispute resolution (concerned only with
resolution of disputes).

106. In order to achieve such a distinction, the Bill introduces two new, more
descriptive terms - `family counselling', inserted by this section and `family dispute
resolution' (defined at section 10F). The definition of `family counselling' is based
on the National Alternative Dispute Resolution Advisory Council's (NADRAC)
`Glossary of Terms'.

Section 10C    Definition of family counsellor




                                            86
107. Section 10C provides a definition of persons who may be regarded as family
counsellors. The first instance is where a person is accredited as a family counsellor
under the Accreditation Rules.

108. The Family Court of Australia, the Federal Magistrates Court and the Family
Court of Western Australia will be able to authorise people to act as family
counsellors, as will organisations designated by the Attorney-General.

109. To ensure that professionals who are currently delivering family and child
counselling and family and child mediation are able to continue to offer these services
without interruption Part 4 of Schedule 4 provides for transitional arrangements.

110. Under subsection 10C(2) the Attorney-General is required to publish, at least
annually, a list of the organisations that he or she has designated under paragraph
10C(1)(b). This provision ensures that the public is able to easily access this
information, in the interests of transparency.

111. Subsection 10C(3) provides that an instrument made under this section is not a
legislative instrument. A `legislative instrument' is defined at section 5 of the
Legislative Instruments Act 2003. In general terms, a legislative instrument is a
written document that is of a legislative character and that is made in the exercise of a
power designated by Parliament. Requirements relating to registering, tabling,
scrutinising and sunsetting all Commonwealth legislative instruments are imposed
under the Legislative Instruments Act. Subsection 10C(3) has been included to assist
readers of the Act, so that they are aware that the requirements of imposed by the
Legislative Instruments Act do not apply to instruments made under this section.

Section 10D    Confidentiality of communications in family counselling

112. Currently section 19 of the Act requires family and child counsellors to make on
oath or affirmation of secrecy. The form of this oath or affirmation is set out at
regulation 58 of the Family Law Regulations 1984. This section combines these
existing provisions to simplify the Act and, by moving the terms of the oath or
affirmation into the primary legislation, emphasises the importance of confidentiality.

113. New section 10D aims to clarify when communications made in family
counselling must or may be disclosed.

114. Recognising the importance of confidentiality to the success of family
counselling, subsection 10D(1) provides that a family counsellor must not disclose a
communication made in family counselling unless the disclosure is required or
authorised under the section.

115. In order to provide guidance to family counsellors the section delineates the
circumstances in which disclosure is mandatory from those circumstances in which
disclosure may occur, at the discretion of the family counsellor. The Government
considers that it is only appropriate to mandate disclosure of communications where
the body or individual to whom communications are to be disclosed is able to be
prescribed in the legislation. As a result, disclosure of communications made in
family counselling is mandatory where the family counsellor reasonably believes that



                                           87
the disclosure is necessary for the purpose of complying with a law of the
Commonwealth, a State or a Territory.

116. The situations in which a family counsellor may disclose a communication
made in family counselling are set out at subsection 10D(4). These situations include
the situation where the family counsellor reasonably believes that the disclosure is
necessary for the purpose of protecting a child from the risk of physical or
psychological harm (paragraph 10D(4)(a)). As is the case in relation to the concept of
harm employed in section 68F of the Act, the physical or psychological harm referred
to here encompasses sexual harm.

117. Subsection 10D(3) enables a family counsellor to disclose a communication,
with the consent of the party who made the disclosure, where that person is an adult,
or, where the disclosure was made by a child who is under 18, both parents must
consent to the disclosure. If agreement cannot be reached the matter may be referred
to the court for decision. This situation is similar to that which operates in relation to
parentage testing, under section 69W of the Act.

118. The ability to disclose communications, with consent, will assist the people
participating in family counselling in a number of ways. For example, if a person
consents to the disclosure of information when the family counsellor is making a
referral to another professional, this will ensure that clients will not need to relate the
details of their circumstances each time they see a different professional.

119. Subsection 10D(5) allows a family counsellor to make disclosures in order to
provide information for research relevant to families, as long as the information
provided does not constitute `personal information' as defined in section 6 of the
Privacy Act 1988. `Personal information' is information or an opinion from which an
individual's identity is apparent, or can reasonably be ascertained.

120. Subsection 10D(6) clarifies that information that is inadmissible as evidence due
to the effect of section 10E, does not become admissible merely because a family
counsellor is required or authorised to disclose that information under subsections
10D(2) to (5). The Note to this subsection clarifies that the counsellor's evidence is
inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to
disclose it in other circumstances.

121. Subsection 10D(7) clarifies that information necessary for the provision of a
certificate by a family counsellor under paragraph 16(2A)(a) of the Marriage Act
1961 is not prevented by this provision.

122. Section 16 of the Marriage Act 1961 deals with the ability of judges to consent
to the marriage of a minor in circumstances where consent has been refused by the
minor's parents. Paragraph 16(2A)(a) provides that the judge must not consider the
minor's request for consent unless there is a signed certificate from a family
counsellor stating that the minor has received counselling in relation to the proposed
marriage. Subsection 10D(7) ensures that the family counsellor will not be
considered to have breached confidentiality requirements if they provide such a
certificate.




                                            88
123. Subsection 10D(8) clarifies that, in section 10D, communication includes
admission.




                                        89
Section 10E Admissibility of communications in family counselling and in referrals
from family counselling

124. Currently, the admissibility into evidence of communications and admissions
made in family and child counselling and family and child mediation, or in a
professional consultation pursuant to a referral by a family and child counsellor or
family and child mediator, is addressed by section 19N of the Act.

125. Section 10E largely recreates section 19N, to the extent that that section relates
to family counsellors. Subsection 10E(1) provides that a communication made in
family counselling is not admissible in any court or proceedings, in any jurisdiction.

126. Subsection 10E(1) also provides that a communication made when a
professional consultation is being carried out on referral from a family counsellor is
also inadmissible in any court or proceedings, in any jurisdiction. In order to ensure
that professionals to whom family counsellors make referrals are aware of the
inadmissible status of communications made to them, subsection 10E(4) requires the
family counsellor to inform them of this fact when making a referral.

127. As is the case under current section 19N, an admission or disclosure that
indicates that a child under 18 has been abused or is at risk of abuse may be admitted
as evidence, unless there is sufficient evidence of the admission or disclosure
available to the court from other sources.

128. Subsection 10E(3) clarifies that the information necessary for the provision of a
certificate by a family counsellor under paragraph 16(2A)(a) of the Marriage Act
1961 is not prevented by this provision.

129. Section 16 of the Marriage Act 1961 deals with the ability of judges to consent
to the marriage of a minor in circumstances where consent has been refused by the
minor's parents. Paragraph 16(2A)(a) provides that the judge must not consider the
minor's request for consent unless there is a signed certificate from a family
counsellor stating that the minor has received counselling in relation to the proposed
marriage. Subsection 10D(7) ensures that the family counsellor will not be
considered to have breached confidentiality requirements if they provide such a
certificate.

Part II ­ Division 3 ­ Family Dispute Resolution

Section 10F Definition of family dispute resolution

130. The introduction of compulsory attendance at a dispute resolution process, prior
to applying to the court for an order under Part VII of the Act (subject to some
exceptions), under new section 60I (see Item 9 of Schedule 1) necessitates the
differentiation of processes that aim to resolve disputes from those that are focused on
psychological health and relationship issues. In order to achieve its objectives (as set
out at x), it is critical that section 60I can only be satisfied by attendance at a process
that is genuinely concerned with resolving disputes. Thus it is imperative that such




                                            90
processes are distinguished from processes concerned with personal/ relationship
healing.

131. Currently, Part V of the Regulations provides that the family and child
mediator's role does not include the provision of advice (see paragraph 63(1)(c)). As
a result, dispute resolution processes that include the provision of advice (such as
conciliation) are currently regarded as a form of `family and child counselling'. This
is problematic, as counselling and dispute resolution need to be clearly delineated in
order to allow the successful introduction of compulsory dispute resolution. The
definitions of `family counselling' and `family dispute resolution' achieve a clear
differentiation of the two processes.

132. The definition of `family dispute resolution' is based on NADRAC's `Glossary
of Terms'.

Section 10G    Definition of family dispute resolution practitioner

133. Section 10G provides a definition of persons who may be regarded as family
dispute resolution practitioners. The first instance is where a person is accredited as
a family dispute resolution practitioner under the Accreditation Rules.

134. The Family Court of Australia, the Federal Magistrates Court and the Family
Court of Western Australia will be able to authorise people to act as family dispute
resolution practitioners, as will organisations designated by the Attorney-General.

135. To ensure that professionals who are currently delivering family and child
counselling and family and child mediation are able to continue to offer these services
Part 4 of Schedule 4 provides for transitional arrangements

136. Under subsection 10G(2) the Attorney-General is required to publish, at least
annually, a list of the organisations that he or she has designated under paragraph
10G(1)(b). This provision ensures that the public is able to easily access this
information, in the interests of transparency.

137. Subsection 10G(3) provides that an instrument made under this section is not a
legislative instrument. A `legislative instrument' is defined at section 5 of the
Legislative Instruments Act 2003. In general terms, a legislative instrument is a
written document that is of a legislative character and that is made in the exercise of a
power designated by Parliament. Requirements relating to registering, tabling,
scrutinising and sunsetting all Commonwealth legislative instruments are imposed
under the Legislative Instruments Act. Subsection 10G(3) has been included to assist
readers of the Act, so that they are aware that the requirements of imposed by the
Legislative Instruments Act do not apply to instruments made under this section.

Section 10H Confidentiality of communications in family dispute resolution

138. Currently family and child mediators authorised by approved organisations or
the courts are required by section 19K of the Act to make on oath or affirmation of
secrecy. The form of this oath or affirmation is set out at regulation 66 of the Family
Law Regulations 1984. Other family and child mediators (that is, those who are not
authorised by an approved organisation or court but who meet the regulatory


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requirements for family and child mediators, referred to as `private mediators') have a
duty of confidentiality under regulation 67. This duty of confidentiality requires
private mediators to adhere to the same requirements as set down in the oath in
regulation 66 of the Regulations. Section 10H combines these existing provisions to
simplify the Act and, by moving the terms of the oath or affirmation into the primary
legislation, emphasise the importance of confidentiality. The section also aims to
clarify when communications made in family dispute resolution must or may be
disclosed.

139. Recognising the importance of confidentiality to the success of family dispute
resolution, subsection 10H(1) provides that a family dispute resolution must not
disclose a communication made in family dispute resolution unless the disclosure is
required or authorised under this section.

140. In order to provide guidance to family dispute resolution practitioners this
section delineates the circumstances in which disclosure is mandatory from those
circumstances in which disclosure may occur, at the discretion of the family dispute
resolution practitioner. The Government considers that it is only appropriate to
mandate disclosure of communications where the body or individual to whom
communications are to be disclosed is able to be prescribed in the legislation. As a
result, disclosure of communications made in family dispute resolution is mandatory
where the family dispute resolution practitioner reasonably believes that the
disclosure is necessary for the purpose of complying with a law of the
Commonwealth, a State or a Territory.

141. The situations in which a family dispute resolution practitioner may disclose a
communication made in family dispute resolution are set out at subsection 10H(4).
These situations include the situation where the family dispute resolution practitioner
reasonably believes that the disclosure is necessary for the purpose of protecting a
child from the risk of physical or psychological harm (paragraph 10H(4)(a)). As is
the case in relation to the concept of harm employed in section 68F of the Act, the
physical or psychological harm referred to here encompasses sexual harm.

142. Subsection 10H(3) enables a family dispute resolution practitioner to disclose a
communication, with the consent of the party who made the disclosure, where that
person is an adult, or, where the disclosure was made by a child who is under 18, both
parents must consent to the disclosure. If agreement cannot be reached the matter
may be referred to the court for decision. This situation is similar to that which
operates in relation to parentage testing, under section 69W of the Act.

143. The ability to disclose communications, with consent, will assist the people
participating in family dispute resolution in a number of ways. For example, if a
person consents to the disclosure of information when the family dispute resolution
practitioner is making a referral to another professional, this will ensure that clients
will not need to relate the details of their story each time they see a different
professional.

144. Subsection 10H(5) allows a family dispute resolution practitioner to make
disclosures in order to provide information for research relevant to families, as long as
the information provided does not constitute `personal information' as defined in


                                            92
section 6 of the Privacy Act 1988. `Personal information' is information or an opinion
from which an individual's identity is apparent, or can reasonably be ascertained.

145. Subsection 10H(6) clarifies that the provision of a certificate by a family dispute
resolution practitioner under subsection 60I(8) is not prevented by the confidentiality
requirement.

146. Subsection 60I(8) (see Schedule 1) provides that a court must not hear an
application for a parenting order unless (subject to some exceptions) the applicant
files a certificate from a family dispute resolution practitioner that states either: that
the applicant has attended family dispute resolution and that all attendees made a
genuine effort to resolve the dispute; that the applicant has attended family dispute
resolution but that one or more of the attendees did not make a genuine effort to
resolve the dispute; or that the applicant did not attend, but this failure was due to the
failure of the other party to attend.

147. Subsection 10H(7) clarifies that information that is inadmissible as evidence due
to the effect of section 10J, does not become admissible merely because a family
dispute resolution practitioner is required or authorised to disclose that information
under subsections 10H(2) to (5).

148. Subsection 10H(8) clarifies that, in section 10H, communication includes
admission.

Section 10J Admissibility of communications in family dispute resolution and in
referrals from family dispute resolution

149. Currently, the admissibility into evidence of communications and admissions
made in family and child counselling and family and child mediation, or in a
professional consultation pursuant to a referral by a family and child counsellor or
family and child mediator, is addressed by section 19N of the Act.

150. Section 10J largely recreates section 19N, to the extent that that section relates
to family dispute resolution practitioners. Subsection 10L(1) provides that a
communication made in family dispute resolution is not admissible in any court or
proceedings, in any jurisdiction.

151. Subsection 10J(1) also provides that a communication made when a professional
consultation is being carried out on referral from a family dispute resolution
practitioner is also inadmissible in any court or proceedings, in any jurisdiction. In
order to ensure that professionals to whom family dispute resolution practitioners
make referrals are aware of the inadmissible status of communications made to them,
subsection 10J(4) requires the family dispute resolution practitioner to inform them of
this fact when making a referral.

152. As is the case under current section 19N, an admission or disclosure that
indicates that a child under 18 has been abused or is at risk of abuse may be admitted
as evidence, unless there is sufficient evidence of the admission or disclosure
available to the court from other sources.




                                            93
153. Subsection 10J(3) clarifies that the provision of a certificate by a family dispute
resolution practitioner under subsection 60I(8) is not prevented by this provision.

154. Subsection 60I(8) (see Schedule 1) provides that a court must not hear an
application for a parenting order unless (subject to some exceptions) the applicant
files a certificate from a family dispute resolution practitioner that states that the
applicant has attended family dispute resolution, or that the applicant did not attend,
but this failure was due to the failure of the other party to attend.

10K Family dispute resolution practitioners must comply with regulations

155. As a result of the restructuring of Parts II and III of the Act, section 19P has
been removed from the Act. The substance of section 19P has been placed in new
section 10K.

156. Section 10K provides that the regulations may prescribe requirements to be
complied with by family dispute resolution practitioners in relation to the family
dispute resolution services that they provide. Currently the Regulations require
family and child mediators to:
       ° have suitable qualifications, training and experience (regulation 60)
       ° fulfil continuing training requirements (regulation 61)
       ° before providing mediation, conduct an assessment of the parties to a
           dispute to determine whether mediation is appropriate, and if the mediator
           considers that mediation is inappropriate, must not provide it (regulation
           62)
       °   provide written information to the parties, at least one day prior to the
           mediation (regulation 63)
       °   ensure that the mediation process is suited to the needs of the parties
           (regulation 64)
       °   not provide mediation in cases where the mediator has a conflict of interest
           (regulation 65), and
       °   not use any information acquired from a mediation for personal gain
           (regulation 65).

157. During the transition period the regulations made under this section imposing
requirements on family dispute resolution practitioners will continue to apply. These
regulations will be amended shortly to reflect the new terminology introduced by the
Bill).

158. As currently applies under section 19P of the Act, section 10K provides that the
regulations may prescribe penalties not exceeding 10 penalty units for offences
against the regulations made under this section. (The value of a `penalty unit' is set
out at section 4AA of the Crimes Act 1914. It is currently $110. Thus the maximum
penalty that could be prescribed in the regulations pursuant to this provision is a fine
of $1,100).

Part II - Division 4 ­ Arbitration
Section 10L Definition of arbitration


                                           94
159. Currently the Act does not contain a definition of `arbitration', which poses
problems for users of the Act who are unfamiliar with the term. The definition of
arbitration inserted here is taken from NADRAC's `Glossary of Common Terms'.

160. At present the Act refers to arbitration as `private arbitration' and `section 19D
arbitration'. The term `private arbitration' is not sufficiently explanatory, and may
mislead, to the extent that it implies that the court has no involvement. In order to
address these issues the term `private arbitration' is replaced by the term `relevant
property and financial arbitration'. This new term assists understanding by clearly
stating the types of issues that may be dealt with in arbitration.

161. In order to simplify the Act, current Parts II and III of the Act are deleted and
replaced by a new structure that groups provisions relating to non-judicial
interventions logically, by topic. This restructure of the Act involves the repeal,
modification, relocation and/ or renumbering of current sections relating to
counselling, dispute resolution and arbitration. As a result of this restructure section
19D has been removed from the Act. The substance of section 19D has been placed
in new section 13E. To reflect this change, what is currently referred to as `section
19D arbitration' is now termed `section 13E arbitration'.

162. No substantive changes have been made to the arbitration provisions of the Act.

Section 10M Definition of arbitrator

163. The definition of `arbitrator' is unchanged from the current definition at
subsection 4(1) of the Act, except that it specifically refers to the fact that the
`prescribed requirements' for arbitrators will be set out in the Regulations, which
should assist users of the Act.

164. No substantive changes have been made to the arbitration provisions of the Act.

Section 10N Arbitrators may charge fees for their services

165. This provision reproduces current section 19H of the Act. Section 19H has been
removed from the Act as a result of the restructure which deletes current Parts II and
III of the Act are deleted and replaces them with a new structure that groups
provisions relating to non-judicial interventions logically, by topic.

166. This section permits arbitrators to charge fees for their services and requires
them to provide written information to the parties about those fees before the
arbitration commences.

167. No substantive changes have been made to the arbitration provisions of the Act.

Section 10P Immunity of arbitrators

168. This provision reproduces current section 19M of the Act. Section 19M has
been removed from the Act as a result of the restructure which deletes current Parts II
and III of the Act are deleted and replaces them with a new structure that groups
provisions relating to non-judicial interventions logically, by topic.



                                           95
169. This section provides that an arbitrator has, in performing his or her functions as
an arbitrator, the same protection and immunity as a Judge of the Family Court has in
performing the functions of a Judge.

170. An arbitrator makes a determination (referred to as an `award') on a dispute,
based on the arguments and evidence put to him or her. The arbitrator's award may
be registered in a court (pursuant to section 13H). If an award is registered in this
way, it has effect as if it were a decree made by the court in which it is registered. As
a result, an arbitrator requires immunity both to preserve the integrity of his or her
determination and to ensure that arbitrators are able to make determinations
independently and on the basis of their unbiased opinion, without apprehension of
personal consequences.

171. No substantive changes have been made to the arbitration provisions of the Act.

Part III ­ Family consultants
Division 1 ­ About family consultants

Section 11A Functions of family consultants

172. The role of the courts with jurisdiction under the Act in delivering counselling
and dispute resolution services is likely to change. The court's delivery of these
services is expected to decrease in parallel with the increasing provision of these
services by the community sector.

173. The courts are moving to a process in which a `family consultant' will be
assigned to each case in the court involving children, and will manage the case,
providing a continuing service, as it moves through the court process. Part III of the
Bill deals with the functions of `family consultant', who will be appointed by the
Family Court of Australia, the Family Court of Western Australia or the Federal
Magistrates Court.

174. The primary distinction between `family counsellors' and `family dispute
resolution practitioners' (who mainly provide services in the community) on the one
hand, and court-based `family consultants' on the other, is that the former will
provide confidential services. Therefore evidence of anything said or any admissions
made during those processes will be inadmissible. The services provided by `family
consultants' will not be protected by confidentiality and evidence of things that are
said to a family consultant will be admissible in court provided the person concerned
has been informed that disclosures made to family consultants are admissible. Even if
a person has not been informed that their statements or disclosures will be admissible,
special considerations will apply in cases that involve child abuse.

175. This approach will help to make it clearer when court staff or persons engaged
by the court are providing confidential/inadmissible services and when they are not.
Under the Act in its present form court staff or persons engaged by a court may
provide confidential or non-confidential services but do so under the title mediators,
counsellors or welfare officers. Under the Bill the title of the person who provides
court services will differ depending upon whether the process is confidential or not
and people will need to be informed when statements made in a process will be


                                           96
admissible in court. This will assist in addressing the confusion that exists among the
public as to the roles performed by the two sectors and the appropriate place to seek
different forms of assistance.

176. Section 11A specifies a number of the functions to be performed by family
consultants, which include:
       o assisting and advising people involved in the proceedings (eg.
         grandparents) by, for example, providing expert advice on the effect on
         children of different ages of separation from a grandparent who has been a
         major caregiver to the child.
       ° assisting and advising courts, and giving evidence in relation to the
         proceedings. For example, a family consultant may assist the court by
         providing expert evidence on an issue raised in the case, such as how a
         child's age may affect his or her perception of a parental separation.
       ° helping people involved in the proceedings (eg. grandparents) to resolve
         disputes that are the subject of the proceedings by, for example, suggesting
         possible solutions that take into account the positions of both parties, or
         providing examples of how other people have dealt with similar problems.
       ° reporting to the court in certain circumstances including where, in divorce
         proceedings the court doubts whether the arrangements made for welfare
         and development of the children of the marriage are proper in all the
         circumstances, the court may adjourn the proceedings in order to obtain a
         report from a family consultant.
       ° advising the court about appropriate family counsellors, family dispute
         resolution practitioners and courses, programs and services to which the
         court can refer the parties to proceedings. The court may seek this advice
         from a family consultant (in the case of the Family Court of Australia, the
         Federal Magistrates Court or the Family Court of Western Australia) or an
         appropriately qualified professional, either within the court or outside it
         (such as a professional employed by a Family Relationship Centre).

Section 11B Definition of family consultant

177. Section 11B explains that a `family consultant' is a person who is appointed:
       ° as an officer of the Family Court of Australia under paragraph 38N(1)(d)
           of the Act (paragraph 11B(a))
       °   in relation to the Federal Magistrates Court under paragraph 99(1)(f) of the
           Federal Magistrates Act 1999 (paragraph 11B(b))
       °   appointed as a family consultant in relation to the Family Court of
           Australia under the Regulations (paragraph 11B(c)), or
       °   in relation to the Family Court of Western Australia (paragraph 11B(d)).

178. Section 38BA, at item 32 of this Schedule, provides that the Chief Executive
Officer of the Family Court of Australia has all the functions conferred on family
consultants by section 11A, and any associated powers and duties. Section 38BC
allows the Chief Executive Officer of the Family Court of Australia to give directions




                                          97
to an officer of that court that relate to the officer's functions as a family consultant.
The Note to section 11B draws attention to these provisions.

179. Similarly, section 93A of the Federal Magistrates Act 1999, at item 106 of this
Schedule, provides that the Chief Executive Officer of the Federal Magistrates Court
has all the functions conferred on family consultants by section 11A of the Act, and
any associated powers and duties. Section 93C allows the Chief Executive Officer of
the Federal Magistrates Court to give directions to an officer of that court that relate
to the officer's functions as a family consultant. The Note to section 11B draws
attention to these provisions.

Section 11C Admissibility of communications with family consultants and referrals
from family consultants

180. The primary distinction between `family counsellors' and `family dispute
resolution practitioners'(who mainly provide services in the community) on the one
hand, and court-based `family consultants' on the other, is that the former will
provide confidential services and evidence of anything said or any admissions made
during those processes will be inadmissible.

181. The services provided by `family consultants' will not be protected by
confidentiality and evidence of things that are said to a family consultant will be
admissible in proceedings under the Act, provided the person concerned has been
informed that disclosures made to family consultants are admissible.

182. A communication made when a professional consultation is being carried out on
referral from a family consultant is also admissible in proceedings under the Act,
provided that the person concerned has been informed that such disclosures are
admissible.

183. Note 2 clarifies that the fact that subsection 11C(1) provides that
communications with a family consultant or with a professional to whom a person has
been referred by a family consultant are admissible in proceedings under this Act
should not be interpreted as implying that such communications are inadmissible in
other proceedings (such as, for example, criminal proceedings).

184. Subsection 11C(3) provides that even in cases where a person has not been
informed that communications with a family consultant or with a professional to
whom a person has been referred by a family consultant are admissible,
communications that indicate that a child under 18 has been abused or is at risk of
abuse may be admitted as evidence, unless there is sufficient evidence of the
admission or disclosure available to the court from other sources. This reflects
current section 19N of the Act, and sections 10E and 10J of this Schedule, which
relate to the admissibility of communications in family counselling and family dispute
resolution, respectively.

Section 11D Immunity of family consultants




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185. This section provides that a family consultant has, in performing his or her
functions as a family consultant, the same protection and immunity as a Judge of the
Family Court has in performing the functions of a Judge.

186. Family consultants require immunity as their work, as set out at 11A, will
directly feed into the court's decision-making process. If the family consultants did
not have immunity, people who were unhappy with the court's decision could
endeavour to attack the foundations of that decision by challenging the family
consultants. Any problems with the court's decisions should be dealt with directly
through the appeals process.

Division 2 ­ Courts' use of family consultants
Section 11E Courts to consider seeking advice from family consultants

187. Part IIIB of the Act, inserted by this Schedule, sets out the power of courts
exercising jurisdiction under the Act to order, or advise, people to attend family
services, either court-based or non-court, that are appropriate to their needs.

188. Section 11E aims to ensure that the court makes orders that are appropriate to
the circumstances and needs of the parties, and which take into account the family
services available in different areas. The section provides that where a court has the
power to order a person to attend family counselling, family dispute resolution, a
course, program or service, or an appointment with a family consultant, it may seek
the advice of either a family consultant (if it is a Court that has family consultants ­
that is, the Family Court of Australia, the Federal Magistrates Court or the Family
Court of Western Australia) or an appropriately qualified professional, either within
the court or outside it (such as a person employed by a Family Relationship Centre).
The section aims to ensure that the court makes orders that are appropriate to the
circumstances and needs of the parties, and which take into account the family
services available in different areas.

189. To emphasise the importance of making orders that are tailored to the
individual's requirements, the court must consider seeking such professional advice
before making a relevant order.

190. In order to ensure the transparency of court processes, subsection 11E(2)
provides that if, when making a referral, the court seeks the advice of a family
consultant or other professional, the person or people being referred must be informed
of the person from whom the court is seeking advice and the nature of the advice
being sought.

Section 11F Court may order parties to attend appointments with a family consultant

191. Section 11F allows a court exercising jurisdiction in proceedings under the Act
to order one or more of the parties to the proceedings to attend one or appointments
with a family consultant. The court would make such an order where it considers that
one or more of the parties would benefit from the services that a family consultant is
able to provide. The functions performed by family consultants are set out at section
11A and include assisting and advising people involved in the proceedings (paragraph




                                           99
11A(a)) and helping people involved in proceedings to resolve disputes (paragraph
11A(c)).

192. The Note following subsection 11F(1) reminds the court that, before ordering
one or more of the parties to attend appointments with a family consultant, it is
required, under section 11E, to consider seeking the advice of a family consultant or
other appropriately qualified professional as to the services appropriate to the needs of
the person and being referred and the most appropriate provider of those services.




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193. Subsection 11F(2) provides that when ordering parties to attend an appointment
with a family consultant, the court must inform the parties of the effect of section
11G. Subsection 11G(1) provides that if a person has been ordered, by the court, to
attend an appointment with a family consultant and either does not attend the
appointment, or does not comply with an instruction that the family consultant gives
to him or her, the family consultant must report this to the court. If such a report is
made to the court, subsection 11G(2) allows the court to make any further orders that
it considers appropriate.

194. Subsection 11F(3) provides that the court may make an order directing parties to
attend an appointment with a family consultant on its own initiative, or when an
application is made by one of the parties to the proceeding, or by a lawyer who is
independently representing the interests of a child involved in the case, under
section 68L. (Section 68L provides that in proceedings under the Act in which a
child's best interests or welfare is the paramount, or a relevant, consideration, a court
may order that the child's interests are to be independently represented by a lawyer).

Section 11G Consequences of failure to comply with order under section 11F

195. Section 11F allows a court exercising jurisdiction in proceedings under the Act
to order one or more of the parties to the proceedings to attend one or appointments
with a family consultant.

196. If a court, under section 11F, orders a person to attend an appointment with a
family consultant and that person fails to comply with that order, or attends the
appointment as ordered but does not comply with an instruction that the family
consultant gives to the person (for example, if the family consultant instructed the
person to seek counselling for drug or alcohol related problems), the family
consultant must, under subsection 11G(1), report that failure to the court.

197. Subsection 11G(2) provides that when a court receives such a report it may
make any further orders that it considers appropriate. For example if the person has
refused to comply with a family consultant's instructions to treat the other party in a
civil manner when discussions are taking place involving the family consultant, the
court might consider it appropriate to order the person to attend a course or program
that informs participants of the effects that high levels of parental conflict have on
children.

198. Subsection 11G(3) provides that the court may make an order under subsection
11G(2) on its own initiative, or when an application is made by one of the parties to
the proceeding, or by a lawyer who is independently representing the interests of a
child involved in the case, under section 68L. (Section 68L provides that in
proceedings under the Act in which a child's best interests or welfare is the
paramount, or a relevant, consideration, a court may order that the child's interests are
to be independently represented by a lawyer).




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Part IIIA ­ Obligations to inform people about non-court based family services and
about court's processes and services

Division 1 ­ Introduction

Section 12A Objects of this Part

199. To implement the Government's policy of encouraging people considering, or
affected by separation or divorce to utilise non-court counselling and dispute
resolution services, Part IIIA of the Act ensures people receive useful information on
these services, as well as information about the court's processes and services, early
in the process of separation or divorce. The provision of such information at an early
stage may assist the people involved to address issues before they become entrenched,
which should improve the possibility of the parties resolving the dispute without court
intervention.

200. Section 12A set out the objects of new Part IIIA of the Act. These objects
centre around ensuring that people who are considering separation or divorce, or who
are affected, or are likely to be affected by separation and divorce are made aware of
the services available to assist them, the options available to them (for example,
reaching agreement on matters in dispute with the assistance of a family dispute
resolution practitioner, or applying to the court to make an order), and the
consequences attendant on these options.

Division 2 ­ Kind of information to be provided

Section 12B Prescribed information about non-court based family services and
court's processes and services

201. Subsection 12B(1) provides that the Regulations may prescribe information
relating to non-court based family services and the court's processes and services,
which is to be included in the documents provided under this Part. These documents
are required to be provided, in appropriate cases, by legal practitioners (under
subsections 12E(1) and 12E(3)) and the principle executive officer of a court with
jurisdiction under the Act (under subsection 12F(1)).

202. Subsection 12B(2) sets out a number of issues that any information on the non-
court based family services and the court's processes and services that is prescribed in
the Regulations pursuant to subsection 12B(1) must include. This does not prevent
other issues being addressed in the prescribed information.

Section 12C Prescribed information about reconciliation

203. Section 12C provides that the Regulations may prescribe information relating to
services available to help with a reconciliation between the parties to a marriage,
which is to be included in the documents provided under this Part. These documents
are required to be provided, in appropriate cases, by legal practitioners (under
subsection 12E(2)), the principle executive officer of a court with jurisdiction under
the Act (under subsection 12F(1)), and family counsellors, family dispute resolution
practitioners and arbitrators (under subsection 12G(1)).



                                          102
Section 12D Prescribed information about Part VII proceedings

204. Subsection 12D(1) provides that the Regulations may prescribe information that
is to be included in documents provided under this Part to people involved in child-
related proceedings (that is, proceedings under Part VII of the Act). These documents
are required to be provided, in appropriate cases, by legal practitioners (under
subsection 12E(3)) and the principle executive officer of a court with jurisdiction
under the Act (under subsection 12F(1) ­ not in as yet ­ see Bill).

205. Subsection 12D(2) provides that any information to be provided to people
involved in child-related proceedings that is prescribed in the Regulations pursuant to
subsection 12D(1) must include information about the family counselling services
available to assist the parties, and the child or children concerned, to adjust to orders
made under Part VII (for example, parenting orders). This does not prevent other
issues being addressed in the prescribed information.

Division 3 ­ Who must provide information, and when
Section 12E Obligations on legal practitioners

206. Section 12E places obligations on legal practitioners to provide information to
people by whom they are consulted, or who they are representing in proceedings.
This information is to be provided in the form of documents, which should ensure that
the task of providing information is not onerous. The obligations imposed under this
section build on requirements that currently exist in the Act.

207. Subsection 12E(1) requires a legal practitioner who is consulted by a person
who is considering instituting proceedings under the Act to give that person
documents containing the information prescribed in the Regulations pursuant to
section 12B.

208. Subsection 12E(2) requires a legal practitioner who is consulted by, or who is
representing, a married person who is a party to proceedings for a divorce order, or
financial or Part VII proceedings (i.e. proceedings about children), to give that person
documents containing the information prescribed in the Regulations pursuant to
section 12C.

209. A legal practitioner does not have to provide these documents if he or she has
reasonable grounds to believe that the person has already been given these documents
(subsection 12E(4)), or if he or she considers that there is no reasonable possibility of
a reconciliation between the parties to the marriage (subsection 12E(5)).

210. Subsection 12E(3) requires a legal practitioner who is representing a party in
proceedings under Part VII (i.e. proceedings about children), to give that person
documents containing the information prescribed in the Regulations pursuant to
section 12D.

211. A legal practitioner does not have to provide these documents if he or she has
reasonable grounds to believe that the person has already been given these documents
(subsection 12E(4)).



                                          103
212. Section 63DA of the Act (at item 18 of Schedule 1 of the Bill) also imposes
information provision obligations on legal practitioners who are dealing with people
involved in proceedings under Part VII of the Act (i.e. proceedings concerning
children).

Section 12F Obligations on principal executive officers of courts

213. Section 12F places information provision obligations on the principal executive
officer of a court with jurisdiction under the Act. The relevant information is to be
provided in the form of documents, and must be provided on the first occasion that
the person deals with the registry of the court. The principal executive officer of a
relevant court may delegate the actual provision of documents to staff as accords with
the administrative arrangements operating in the different courts. The information
relates to non-court based services and resconciliation.

214. Subsection 12F(2) requires the principal executive officer of a court with
jurisdiction under the Act to ensure that, if a person involved in proceedings under the
Act asks for information about family counselling services or family dispute
resolution services from an officer or staff member of the court, the person is given
documents containing information about those services. `People involved in
proceedings' is defined at subsection 4(1AA) at item 35 of this Schedule. No
obligations are imposed on `people involved in proceedings'. Instead, the use of the
term allows assistance to be given to people, including children, who may be affected
by the proceedings, but are not actually parties to the proceedings.

215. The obligations imposed under section 12F build on the obligations currently
imposed on court staff under sections 17, 19J and 62H and subsection 62B(2).

Section 12G Obligations on family counsellors, family dispute resolution
practitioners and arbitrators

216. Section 12G obliges family counsellors, family dispute resolution practitioners
and arbitrators who deal with a married person who is considering instituting
proceedings for a divorce order, or financial or Part VII proceedings (i.e. proceedings
about children), to give that person (and, in appropriate cases, that person's spouse)
documents containing the information prescribed in the Regulations pursuant to
section 12C. Section 12C provides that the Regulations may prescribe information
relating to services available to help with a reconciliation between the parties to a
marriage, which is to be included in the documents provided under this Part.

217. This builds on the current provisions in the Act that only require judges and
legal practitioners to consider the possibility of a reconciliation of the parties.

218. A family counsellor, family dispute resolution practitioner or arbitrator does not
have to provide this document if he or she has reasonable grounds to believe that the
person has already been given these documents (paragraph 12G(2)(a)), or if he or she
considers that there is no reasonable possibility of a reconciliation between the parties
to the marriage (paragraph 12G(2)(b)).




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219. A Note is provided in the section to reflect that before advising the parties, the
court must consider seeking the advice of a family consultant about the services
appropriate to the parties' needs.

220. Section 63DA of the Act (at item 18 of Schedule 1 of the Bill) also imposes
information provision obligations on family counsellors and family dispute resolution
practitioners who are dealing with people involved in proceedings under Part VII of
the Act (i.e. proceedings concerning children).

Part IIIB ­ Court's powers in relation to court and non-court based family services

Division 1 ­ Introduction

Section 13A Objects of this Part

221. To implement the Government's policy of encouraging people considering, or
affected by separation or divorce to utilise counselling, dispute resolution, arbitration
and other services, Part IIIB of Schedule 4 facilitates, and encourages, access to these
services and gives courts with jurisdiction under the Act power to require parties to
proceedings to attend appropriate services. This section sets out the objects of Part
IIIB.

Division 2 ­ Help with reconciliation
Section 13B Court to accommodate possible reconciliations

222. Subsection 13B(1) provides that a court exercising jurisdiction in proceedings
for a divorce order, or financial or Part VII proceedings (i.e. proceedings about
children) instituted by a party to a marriage, must, from time to time, consider the
possibility of a reconciliation between the parties to the marriage. This subsection
reproduces current subsection 14C(1) of the Act.

223. Subsection 13B(2) provides that if the court considers, from the evidence in the
proceedings or the attitude of the parties to the marriage, that there is a reasonable
possibility of a reconciliation between the parties, the court may adjourn the
proceedings to give the parties the opportunity to consider a reconciliation. This
subsection reproduces current subsection 14C(2) of the Act, except to the extent that
that subsection allows a judge, if he or she considers that there is a reasonable
possibility of a reconciliation of the parties, to interview the parties in chambers to
assist in that reconciliation. Following consultation with the courts this ability has
been removed, as it is felt that this role is better performed by a person specifically
trained as a counsellor.

224. Subsection 13B(3) provides that if proceedings are adjourned to give the parties
an opportunity to consider a reconciliation, the court must advise the parties to attend
a family counselling organisation, or other appropriate person or organisation. This
subsection reflects the Government's belief that reconciliation of parties to a marriage
should be encouraged wherever appropriate and that it is important that people
considering a reconciliation are given the most appropriate expert assistance. The
parties are not obliged to act on the court's recommendation under this subsection, but




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it is appropriate that they are made aware of, and advised to use, relevant available
services.

225. The Note following subsection 13B(3) reminds the court that, before advising
the parties to attend family counselling or another appropriate person or organisation
under subsection 13B(2), it is required, under section 11E, to consider seeking the
advice of a family consultant or other appropriately qualified professional as to the
services appropriate to the needs of the parties and the most appropriate provider of
those services.

226. Subsection 13B(4) applies in circumstances where a court has adjourned the
proceedings under subsection 13B(2) in order to give the parties the opportunity to
consider reconciliation. This subsection provides that the court must resume the
proceedings as soon as practicable if, after the adjournment, one of the parties
requests this. This recognises that although, in appropriate circumstances, parties to a
marriage should be given encouragement and assistance to reconcile, if either or both
of those parties does not wish to pursue a reconciliation, they should be able to
resume a court proceeding without undue delay.

Division 3 ­ Referrals to family counselling, family dispute resolution and other
family services

Section 13C Court may refer parties to family counselling, family dispute resolution
and other family services

227. Section 13C allows a court exercising jurisdiction in proceedings under the Act
to order one or more of the parties to the proceedings to attend family counselling,
family dispute resolution, or another appropriate course, program or service. The
court would make such an order where it is felt that one or more of the parties would
benefit from these services.

228. Currently, courts exercising jurisdiction under the Act can order people to
attend, or refer them to, counselling, mediation or a post-separation parenting
program under sections 16A, 16B, 19B, 19BAA, 19BA, 62F, 65F, 65LA and 70NG.

229. Section 13C consolidates and strengthens the power of the court under those
sections in order to make the Act simpler to access and understand. Empowering the
court to order people to attend relevant services at any time in any proceedings under
the Act maximises the opportunities for people to address issues and resolve disputes
outside the court. The attitudes of parties may change throughout proceedings and
proposed section 13C will allow the court to direct people to appropriate services at
the appropriate time.

230. To ensure that the court makes orders that are suitable to the circumstances and
needs of the parties, and which take into account the family services available in
different areas, the court is required to consider seeking advice from a family
consultant (if it is a court that has family consultants) or an appropriately qualified
professional, either within the court or outside it (such as a professional employed by
a Family Relationship Centre) when making an order under this section. This
recognises that judges may not be aware of all the relevant services operating in an



                                          106
area, or their areas of expertise, and therefore may benefit from seeking specialist
advice.

231. Subsection 13C(2) allows the court to suggest a particular purpose for the
attendance or participation of the party or parties. For example, a court might
suggest, when ordering a party to attend a family counsellor, that the counsellor could
explore ways to assist the party to cope with grief arising from separation or divorce.

232. Subsection 13C(3) provides that an order made under subsection 13C(1) may
require the party or parties to encourage the participation of specified other persons
who are likely to be affected by proceedings. For example, it may be appropriate to
involve children, grandparents or other relatives in family counselling or family
dispute resolution.

233. Subsection 13C(4) enables the court to make any other orders, additional to an
order under subsection 13C(1) that it considers reasonably necessary or appropriate in
relation to the order. For example, it may be appropriate to adjourn the proceedings
until the party or parties has attended the service as ordered under subsection 13C(1).

234. Subsection 13C(5) provides that the court may make orders under this section
on its own initiative, or when an application is made by one of the parties to the
proceeding, or by a lawyer who is independently representing the interests of a child
involved in the case, under section 68L. (Section 68L provides that in proceedings
under the Act in which a child's best interests or welfare is the paramount, or a
relevant, consideration, a court may order that the child's interests are to be
independently represented by a lawyer).

Section 13D Consequences of failure to comply with order under section 13C

235. Subsection 13D(1) provides that if a court makes an order under section 13C
and a party fails to comply with that order, the family counsellor, family dispute
resolution practitioner or provider of the course, program or other service must report
that failure to the court.

236. Subsection 13D(2) provides that when a court receives such a report it may
make any further orders that it considers appropriate.

237. Subsection 13D(3) provides that the court may make an order under subsection
13D(2) on its own initiative, or when an application is made by one of the parties to
the proceeding, or by a lawyer who is independently representing the interests of a
child involved in the case, under section 68L. (Section 68L provides that in
proceedings under the Act in which a child's best interests or welfare is the
paramount, or a relevant, consideration, a court may order that the child's interests are
to be independently represented by a lawyer).

238. Section 13D reproduces, in substantive terms, current subsections 62F(5) - (7)
of the Act.

Part IIIB ­ Division 4 - Court's role in relation to arbitration of disputes

Section 13E Court may refer Part VIII proceedings to arbitration


                                          107
239. Section 13E provides that a court exercising jurisdiction under Part VIII
proceedings may, with the consent of all the parties to the proceedings, make an order
referring the proceedings, or part of the proceedings, or any matter arising in the
proceedings, to an arbitrator for arbitration. Part VIII proceedings are proceedings
that relate to property, spousal maintenance or maintenance agreements. These are
referred to a `financial proceedings'.

240. Subsection 13E(2) provides that if a court makes such an order, it may, if
necessary adjourn the proceedings and make any additional orders appropriate to
facilitate the effective conduct of the arbitration.

241. Section 13E reproduces current section 19D of the Act. No substantive changes
have been made to the arbitration provisions.

Section 13F Court may make orders to facilitate arbitration of certain disputes

242. Section 13F provides that a court having jurisdiction under the Act may, on
application by a party to a relevant property or financial private arbitration, make
orders appropriate to facilitate the effective conduct of the arbitration. `Relevant
property or financial arbitration' is defined at paragraph 10L(2)(b) of the Bill.

243. Section 13F reproduces existing subsection 19E(1), except to the extent that the
term `private arbitration' has been replaced by `relevant property or financial
arbitration'.

244. No substantive changes have been made to the arbitration provisions.

Section 13G Family Court and Federal Magistrates Court may determine question of
law referred by arbitrator

245. Section 13G provides that an arbitrator may, at any time before making an
award in the arbitration, refer a question of law arising in relation to the arbitration for
determination by a judge of the Family Court or the Family Court of Western
Australia, or by the Federal Magistrates Court.

246. Under subsection 13G(2), an arbitrator may make such a referral on his or her
own initiative or at the request of one or more of the parties to the arbitration (if the
arbitrator considers it appropriate to do so).

247. An arbitrator must not make an award in the arbitration until the question of law
has been determined, or the judge or the Federal Magistrates Court has remitted the
question to the arbitrator, having found that no question of law arises (subsection
13G(3)).

248. Section 13G consolidates current sections 19EA and 19EB of the Act (with
relevant changes to terminology).

249. No substantive changes have been made to the arbitration provisions.

Section 13H Awards made in arbitration may be registered in court



                                           108
250. Section 13H provides that a party to an award made in arbitration may register
the award in either the court that ordered the arbitration under section 13E, or if the




                                          109
arbitration was not ordered under that section, in any court with jurisdiction under the
Act.

251. An award that is registered with a court subsection 13H(1) has the same effect
as a decree made by the court in which it is registered.

252. Section 13H reproduces current subsections 19D(5) and 19E(2) of the Act (with
relevant changes to terminology).

253. No substantive changes have been made to the arbitration provisions.

Section 13J Family Court or Federal Magistrates Court can review registered
awards

254. Section 13J provides that a party to an award that has been registered in a court
under section 13H may apply for a review of the award, on questions of law, by a
judge of the Family Court or the Family Court of Western Australia, or by the Federal
Magistrates Court.

255. On conducting such a review, the judge or the Federal Magistrates Court may
determine all questions of law arising in relation to the arbitration and make any
decrees that are considered appropriate.

256. Section 13J consolidates current sections 19F and 19FA of the Act (with
relevant changes to terminology).

257. No substantive changes have been made to the arbitration provisions.

Section 13K Family Court and Federal Magistrates Court may set aside registered
awards

258. Section 13K provides that if an award made in arbitration, or an agreement
made as a result of arbitration, is registered in the Family Court, the Family Court of
Western Australia or the Federal Magistrates Court, the court in which it is registered
may make a decree affirming, reversing or varying the award or agreement.

259. However, the court may only make such a decree if it is satisfied that:
       260. the award or agreement was obtained by fraud (paragraph 13K(2)(a))
       261. the award or agreement is void, voidable or unenforceable (paragraph
          13K(2)(b))
       262. it is impracticable for some of the award or agreement to be carried out
          (paragraph 13K(2)(c)), or
       263. the arbitration was biased or there was a lack of procedural fairness in
          how the arbitration was conducted (paragraph 13K(2)(d)).

264. Section 13K consolidates current sections 19G and 19GA of the Act (with
relevant changes to terminology).

265. No substantive changes have been made to the arbitration provisions.



                                          110
Item 37: Subsection 26B(1)

266. This item amends subsection 26B(1) of the Act to replace a reference to section
19G with a reference to section 13K. This amendment is consequential to the
amendments to the structure of, and the terminology employed in, the Act.

Item 38: Subsection 37(2)

267. This item amends subsection 37(2) of the Act to omit a reference to court
counsellors, as a consequence of the amendments to the terminology employed in the
Act.

Item 39: At the end of section 37

268. Under section 38BC, the Chief Executive Officer of the Family Court has the
power to give directions that relate to the functions of family consultants in the Court,
and the functions of court officers or staff members acting as family counsellors or
family dispute resolution practitioners.

269. This item provides that the Principal Registrar must not give directions that
relate to the functions of these people. This clarifies that the responsibility for family
consultants, family counsellors and family dispute resolution practitioners in the
Family Court rests with the Chief Executive Officer of that Court, rather than with its
Principal Registrar.

Item 40: Paragraph 37A(1)(e)

270. This item amends paragraph 37A(1)(e) of the Act to refer to the new sections
inserted by the Bill. This amendment is consequential to the amendments to the
structure of the Act.

Item 41: Paragraph 37A(2)(e)

271. This item amends paragraph 37A(2)(e) of the Act to replace a reference to
section 19G with a reference to section 13K. This amendment is consequential to the
amendments to the structure of, and the terminology employed in, the Act.

Item 42: After Division 1 of Part IVA

Division 1A ­ Administration of Court's family services

272. This item inserts a new Division into the Act, to deal with administration of the
Family Court's family services.

Section 38BA Chief Executive Officer has functions of family consultants

273. Section 38BA confers the functions to be performed by family consultants under
section 11A on the Chief Executive Officer of the Family Court. These functions can
be delegated (see section 38BB below). As the Chief Executive Officer can only
delegate functions that he or she possesses the functions to be performed by family



                                           111
consultants under proposed section 11A must be conferred on the Chief Executive
Officer.

Section 38BB Chief Executive Officer may delegate powers and functions that relate
to family consultants

274. Section 38BA permits the Chief Executive Officer to delegate the functions
conferred upon him or her under section 38BA. This allows the Chief Executive
Officer to control the work flow to individual family consultants, to ensure that they
are able to provide services to the court and people involved in proceedings in the
most efficient and effective way.

275. The manner in which the Chief Executive Officer chooses to delegate such
functions will be a decision for him or her. For example, the Chief Executive Officer
may choose to delegate the functions of family consultants to a `Principal family
consultant'. The Bill has been designed to allow maximum flexibility for the CEO in
this regard.

Section 38BC Chief Executive Officer may give directions that relate to family
services functions

276. The Chief Executive Officer of the Family Court has power, under
subsection 38D(1), to do all things necessary or convenient to be done for the purpose
of assisting the Chief Judge to manage the administrative affairs of the Family Court.
This situation will not be changed by the proposed amendments.

277. To put the matter beyond doubt, section 38BC clarifies that the Chief Executive
Officer may give directions to family consultants, and court officers or staff members
performing the functions of a family counsellor or family dispute resolution
practitioner.

Section 38BD Chief Executive Officer may authorise officer or staff member to act as
family counsellor or family dispute resolution practitioner

278. Sections 10C and 10G explain who is a `family counsellor' or a `family dispute
resolution practitioner'. One category of family counsellor and family dispute
resolution practitioner is a person who is authorised by the Chief Executive Officer of
the Family Court, to act as a family counsellor under this section (as per paragraphs
10C(1)(c) and 10G(c)).

279. Subsection 38BD(3) ensures that family consultants who are authorised by the
Chief Executive Officer, under this section, to provide family counselling or family
dispute resolution for the Family Court do not combine the two roles, by, for
example, attempting to provide services as both a family consultant and a family
dispute resolution practitioner in the one case. It is imperative that the work of family
consultants is kept separate from the work of family counsellors and family dispute
resolution practitioners as the confidentiality and admissibility applying to the
processes are completely different and it would be impossible for a practitioner to
offer both types of services without compromising each one.




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Item 43: Paragraphs 38N(1)(d), (da), (daa) and (db)

280. Section 38N of the Act sets out the categories of officers of the Family Court,
other than the Chief Executive. This item removes the following references to
positions that have been changed due to changes in terminology and adds a new
reference to `family consultants':
           o Paragraph 38N(1)(d) ­ court counsellors. This term is removed by the
             Bill. See item 17 of this Schedule.
           o Paragraph 38N(1)(da) ­ a Principal Mediator. The term `mediator' is
             not used in the Bill. In order to give the Family Court maximum
             flexibility to organise its administrative arrangements (especially in
             view of the creation of a combined registry for the Family Court and
             the Federal Magistrates Court), the Bill does not refer to any hierarchy
             of family consultants ­ this will be a matter for the courts to determine.
           o Paragraph 38N(1)(daa) ­ Managers Mediation. The terms `mediator'
             and `mediation' are not used in the Bill. As above, the Bill does not
             impose any hierarchy on family consultants ­ this is a matter for the
             courts to determine.
           o Paragraph 38N(1)(db)- mediators. The term `mediator' is not used in
             the Bill.
Item 44: After subsection 38R(1)

281. Section 38R of the Act allows the Chief Executive Officer of the Family Court
to engage consultants. This item explicitly provides that the Chief Executive Officer
may engage people to perform family counselling and family dispute resolution.

Item 45: Subsection 38R(2)

282. This amendment is consequential to Item 44.

Item 46: Paragraph 41(4)(c)

283. Section 41 of the Act sets out the requirements for the establishment of State
Family Courts. This item amends paragraph 41(4)(c), to provide that the Governor-
General will not proclaim a court to be a State Family Court unless, amongst other
things, the Governor-General is satisfied that appropriate family counselling, family
dispute resolution services and family consultants will be available to that court.
Currently paragraph 41(4)(c) only refers to `counselling facilities' being available.

Item 47: Paragraph 44(1B)(a)

284. Subsection 44(1B) provides that an application for divorce shall not be heard
(without the leave of the court) unless a certificate is filed stating that the parties
have considered reconciliation with the assistance of a family and child counsellor or
other suitable person. This item updates the titles of the professionals from whom a
certificate may be obtained in line with the changes to terminology employed in the
Act.



                                          113
Item 48: Subsection 55A(2)

285. This item changes the reference in subsection 55A(2) to `a family and child
counsellor or welfare officer' to `a family consultant', in line with the amendments to
the terminology employed in the Act.

Item 49: Section 60C (table item 3)

286. This amendment is consequential to the amendments to the structure of, and the
terminology employed in, the Act.

Item 50: Division 3 of Part VII (heading)

287. As a result of amendments to the structure of, and the terminology employed in,
the Act, Division 3 of Part VII now deals only with reports relating to children under
18. This Item amends the heading to Division 3 accordingly.

Item 51: Section 62A

288. This item repeals section 62A, which sets out what Division 3 of Part VII does,
to reflect its new, more limited focus (preparation of reports for use in proceedings
relating to children who are under 18), which is a result of the restructure of the Act.

Item 52: Sections 62B, 62C, 62CA, 62D, 62E and 62F

289. This item repeals current sections 62B, 62C, 62CA, 62D, 62E and 62F of the
Act and inserts a new section 62B.

290. The requirements of current subsection 62B have been strengthened and
incorporated into sections 12D, 12E and 12F.

291. Current sections 62C, 62CA, 62D and 62E relate to provision of family and
child counselling by courts exercising jurisdiction under the Act. As the majority of
family counselling and family dispute resolution will be provided through the
community, rather than the court, these provisions have been removed. As set out in
relation to sections 10C and 10G, the Family Court, the Family Court of Western
Australia and the Federal Magistrates Court will still be able to provide these services
where necessary, but it is intended that most counselling and dispute resolution
services will be provided outside the court.

292. Current section 62F allows the court to direct parties to proceedings to attend a
conference with a family and child counsellor or welfare officer. This has been
replaced by section 13C.

293. New section 62B provides that if an order is made under Part VII (i.e. an order
relating to a child), the court must inform the parties to the proceedings about the
family services available to assist them to adjust to that order. As with sections 12E,
12F and 12G, new section 62B ensures that people are made aware of appropriate
services at the appropriate time.




                                          114
Item 53: Subsection 62G(2)

294. This item changes the reference, in subsection 62G(2), to `a family and child
counsellor or welfare officer' to `a family consultant', in line with the amendments to
the terminology employed in the Act.

Item 54: Subsections 62G(4) and (5)

295. This item changes the references in subsections 62G(4) and (5), to `a family and
child counsellor or welfare officer' to `a family consultant', in line with the
amendments to the terminology employed in the Act.

296. To ensure that the court makes orders that are suitable to the circumstances and
needs of the parties, and which take into account the family services available in
different areas, the court is required to consider seeking advice from a family
consultant (if it is a Court that has family consultants) or an appropriately qualified
professional, either within the court or outside it (such as a person employed by a
Family Relationship Centre) when making an order under this section.

Item 55: Subsection 62G(6)

297. This item changes the reference, in subsection 62G(6), to `a family and child
counsellor or welfare officer' to `a family consultant', in line with the amendments to
the terminology employed in the Act.

Item 56: Section 62H

298. This item repeals section 62H which has been incorporated into new sections
12B, 12D and 12F.

Item 57: Subsection 65F(1)

299. This item repeals subsection 65F(1) which is replaced by proposed section 13C.

Item 58: Paragraph 65F(2)(a)

300. This item changes the reference, in paragraph 65F(2)(a), to `a conference with a
family and child counsellor or a welfare officer' to `family counselling', in line with
the amendments to the terminology employed in the Act.

Item 59: Paragraph 65L(1)(a)

301. This item changes the reference, in paragraph 65L(1)(a), to `a family and child
counsellor or welfare officer' to `a family consultant', in line with the amendments to
the terminology employed in the Act.

Item 60: Paragraph 65L(1)(b)

302. This item changes the reference in paragraph 65L(1)(b), to `a family and child
counsellor or welfare officer' to `a family consultant', in line with the amendments to
the terminology employed in the Act.


                                          115
Item 61: Subsection 65LA(1)

303. Current subsection 65LA(1) of the Act details the procedure to be followed by
the provider of a post-separation parenting program when a person is ordered by the
court to attend such a program. Such levels of detail are unnecessary and are properly
decisions for the providers of programs rather than the legislation. As a result,
subsection 65LA(1) is amended to enable the court to order a party to attend a post-
separation parenting program, without going into unnecessary detail as to the
administration of that program.

Item 62: Subsection 65LA(3) (definition of post-separation parenting program or
program)

304. `Post-separation parenting program' is currently defined at subsection 65LA(3)
and section 70NB of the Act. The current definition includes a reference to a list of
`post-separation parenting program providers' that is kept by the Attorney-General's
Department. As this list has no relation to the quality of services provided, it has little
value and is being removed from the Act by item 63.

305. As a result, the definition of `post-separation parenting program' has been
amended to remove the reference to `a provider'. Instead the quality of services
provided by post-separation parenting programs will be addressed by requiring these
services to be funded by the Australian Government (whether directly or as a member
of a consortium). Accountability requirements set out in the Government's funding
agreements will assist in ensuring a level of quality in the services that are provided
by organisations providing such post-separation parenting programs.

306. The new definition of `post-separation parenting program' has been placed in
subsection 4(1) as those accessing the legislation will often consult that general
Interpretation section when seeking guidance on terms employed in the Act.

Item 63: Subsection 65LA(3)

307. This item repeals the definition of `post-separation parenting program provider'
or `provider'. See item 62 for details.

Item 64: After section 65LA

308. Reflecting the amendment at Item 62, this item inserts section 65LB, which
provides that providers of post-separation parenting programs must meet conditions.
An organisation meets these conditions if:
    (a) the organisation is a recipient organisation (that is, the organisation is funded
        directly under a designated funding program or part of a program), or
    (b) there is a recipient organisation in relation to the organisation (that is, the
       organisation seeking approval is not directly funded, but is part of a legal
       entity, or is a member of a consortium, that receives funding under a
       designated program or part of a program, but that funding is provided to an
       organisation other than the organisation seeking approval).



                                           116
       The need to be able to approve organisations that are not directly funded to
       provide post-separation parenting programs under a designated program, but
       which have a relationship to an organisation that is funded in this manner
       stems from the fact that post-separation parenting programs may receive
       funding under the Australian Government's Family Relationship Services
       Program (FRSP). In order to receive funding under the FRSP, organisations
       must meet the FRSP Program Guidelines. The Guidelines require funded
       organisations to be incorporated. As a result, funding may be provided to
       individual organisations only and not to a collection of organisations such as
       in a consortium. Thus, if a consortium is successful in its application for
       funding under the FRSP, the members of the consortium would either need to
       form a new legal entity to receive the funding (as anticipated by paragraph
       65LB(3)(a)), or could nominate a lead organisation to receive the funding,
       with the remaining organisations acting as subcontractors (as anticipated by
       paragraph 65LB(3)(b)).

2. In order to meet the conditions pursuant to paragraph 65LB(1)(a) an organisation
must be a recipient organisation. Subsection 65LB(2) provides that a recipient
organisation is an organisation that receives, or has been approved to receive, funding
to provide services that include post-separation parenting programs, under a program
or part of a program that has been designated by the Attorney-General. An
organisation that individually applies for, and receives, or is approved to receive,
funding under a designated program to provide services that include post-separation
parenting programs, will be a recipient organisation and will therefore meet the
conditions in this section.

3. In order to be able to meet the conditions pursuant to paragraph 65LB(1)(b) there
must be a recipient organisation in relation to the organisation seeking approval.
Subsection 65LB(3) provides that an organisation is a recipient organisation in
relation to another organisation (the organisation seeking to meet the conditions in
this section) in two situations.

4. The first situation, covered by paragraph 65LB(3)(a) occurs when the organisation
seeking to meet the conditions is a member of an organisation that receives, or has
been approved to receive, funding in order to provide services that include post-
separation parenting programs. This situation may occur when a number of
organisations form a new legal entity in order to receive funding under the FRSP. (As
set out above, the requirement in the FRSP Guidelines that organisations must be
incorporated in order to receive funding means that a consortium of organisations
cannot be funded, so, in order to receive funding, members of a consortium would
either need to form a new legal entity to receive the funding (as anticipated by here),
or nominate a lead organisation to receive the funding, with the remaining
organisations acting as subcontractors (as anticipated by paragraph 65LB(3)(a)).

5. The second situation, covered by paragraph 65LB(3)(b) occurs when an
organisation receives, or has been approved to receive, funding in order to provide
services that include post-separation parenting programs and that organisation acts on
behalf of a group of organisations that includes the organisation seeking approval.
(As set out above, the requirement in the FRSP Guidelines that organisations must be
incorporated in order to receive funding means that a consortium of organisations


                                         117
cannot be funded, so, in order to receive funding, members of a consortium would
either need to form a new legal entity to receive the funding (as anticipated by
paragraph 65LB(3)(a), or nominate a lead organisation to receive the funding, with
the remaining organisations acting as subcontractors (as anticipated here)).

6. Subsection 65LB(4) provides that the Attorney-General may designate, for the
purposes of this section, a program or part of a program that is administered by or on
behalf of the Commonwealth Government under which funding is provided to
organisations for the purposes of making post-separation parenting programs
available.

7. Subsection 65LB(5) provides that the Attorney-General's designation of funding
programs or parts of programs under subsection 65LB(4) is not a legislative
instrument. A `legislative instrument' is defined at section 5 of the Legislative
Instruments Act 2003. In general terms, a legislative instrument is a written document
that is of a legislative character and that is made in the exercise of a power designated
by Parliament. Requirements relating to registering, tabling, scrutinising and
sunsetting all Commonwealth legislative instruments are imposed under the
Legislative Instruments Act. Subsection 65LB(4) has been included to assist readers
of the Act, so that they are aware that the requirements of imposed by the Legislative
Instruments Act do not apply to instruments made under this section.

Item 65: Subsection 67ZA(1)

8. This amendment is consequential to the amendments to the terminology employed
in the Act. The Note to this section explains that the heading to section 67ZA is
altered in similar terms.

Item 66: Subsection 102A(5) (paragraph (b) of the definition of examined)

9. This item changes the reference, in paragraph (b) of the definition of `examined'
in subsection 102A(5), to `a family and child counsellor or welfare officer' to `a
family consultant', in line with the amendments to the terminology employed in the
Act.

Item 67: Before subsection 111CV(1)

10. This amendment is consequential to the amendments to the terminology
employed in the Act. The section has also been amended to clarify the institutions
and individuals it covers. No substantive changes have been made to the section.

Item 68: Subsection 111CV(1)

11. As above, the section has also been amended to clarify the institutions and
individuals it covers. No substantive changes have been made to the section.

Item 69: Subsection 111CV(5)




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12. Due to item 67, the information that previously appeared at this subsection now
appears, in revised form in subsection 111CV(5). As a result subsection 111CV(5) is
repealed by this item.

Item 70: Subsection 115(2)

13. This section has also been amended to clarify the institutions and individuals it
covers. No substantive changes have been made to the section.

Item 71: Paragraph 123(1)(j)

14. This amendment is consequential to the amendments to the terminology
employed in the Act.

Item 72: Paragraph 123(1)(s)

15. This amendment is consequential to the amendments to the terminology
employed in the Act.

Item 73: Paragraph 123(1)(sa)

16. This amendment is consequential to the amendments to the terminology
employed in the Act.

Item 74: Paragraph 123(1)(sb)

17. This amendment is consequential to the amendments to the terminology
employed in the Act.

Item 75: Paragraph 123(1)(sb)

18. This amendment is consequential to the changes to the structure of the Act.

Item 76: Paragraph 123(1)(sc)

19. This amendment is consequential to the amendments to the terminology
employed in the Act.

Item 77: After paragraph 123(1)(sc)

20. This amendment is consequential to the amendments to the terminology
employed in the Act and the introduction of family consultants.

Item 78: Paragraph 123(1)(sd)

21. This amendment is consequential to the amendments to the terminology
employed in the Act and the introduction of family consultants.

Item 79: Paragraph 123(1)(se)




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22. This amendment is consequential to the amendments to the terminology
employed in the Act and the introduction of family consultants.

Item 80: Subparagraph 123(1)(sf)(i)

23. This amendment is consequential to the changes to the structure of the Act.

Item 81: Subparagraph 123(1)(sf)(ii)

24. This amendment is consequential to the changes to the structure of the Act.

Item 82: Subparagraph 123(1)(sf)(ii)

25. This amendment is consequential to the changes to the structure of the Act.

Item 83: Paragraph 125(1)(ba)

26. This amendment is consequential to the amendments to the terminology
employed in the Act.

Item 84: After paragraph 125(1)(bb)

27. This amendment allows regulations to be made in relation to the registration of
arbitration awards, to address a current deficiency in the regulation-making power.

Item 85: Paragraph 125(1)(bc)

28. This amendment is consequential to the amendments at items 76 ­ 79.

Item 86: Paragraph 125(1)(ca)

29. New paragraph 125(1)(ca), inserted by this item, is consequential to the
amendments to the terminology employed in the Act.

Federal Magistrates Act 1999

Item 87: Section 4

30. The Federal Magistrates Act 1999 (FMA) currently uses the term 'primary
dispute resolution' to refer to the range of procedures and services for intervening in,
or resolving, disputes (eg counselling (which may not aim to resolve disputes),
mediation and conciliation). The use of the term 'primary dispute resolution' in the
FMA stems from its use in the Family Law Act. The term is peculiar to family law
and will be removed from the Act by the Bill.

31. In addition, Item 93 of this Schedule amends the FMA to provide that Part 4 of
the FMA does not apply to proceedings under the Family Law Act in the Federal
Magistrates Court. The result of this amendment is that the provisions in the
FMA relating to dispute resolution will no longer apply to family law proceedings.




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32. As a result of these two factors it would be inappropriate to retain the term
`primary dispute resolution' in the FMA. As a result, this item replaces the phrase
`promote the use of primary dispute resolution' in section 4 of the FMA with
`promote the use of dispute resolution'.




                                         121
Item 88: Section 5

33. Section 10A of the Act, at Item 36 of this Schedule, provides that the Regulations
may prescribe `Accreditation Rules', which are rules relating to the accreditation of
family counsellors, family dispute resolution practitioners and `persons to perform
other roles prescribed by regulations' (paragraph 10A(1)(c) - this third category will
cover workers in services that are funded by the Australian Government).

34. As the Accreditation Rules will also be relevant to the Federal Magistrates Court,
this item inserts a definition of `Accreditation Rules' into section 5 of the FMA.

Item 89: Section 5 (definition of Family and child counsellor)

35. Item 20 of this Schedule repeals the definition of `family and child counsellor' in
the Act. This item correspondingly removes the term from the FMA.

Item 90: Section 5

36. Section 11B of the Act, inserted by item 36 of this Schedule, contains a definition
of `family consultant'. This item correspondingly inserts the term in the FMA.

Item 91: Section 5 (definition of Welfare officer)

37. Item 34 of this Schedule repeals the definition of `welfare officer' in the Act.
This item correspondingly removes the term from the FMA.

Item 92: Part 4 (heading)

38. Item 93 inserts section 20A into the FMA. That section provides that family law
proceedings in the Federal Magistrates Court will be covered by the Act, rather than
by provisions in the FMA. This item amends the heading to Part 4 of the FMA to
reflect this change.

Item 93: Before section 21

39. Item 93 inserts section 20A into the FMA. Section 20A provides that family law
proceedings in the Federal Magistrates Court will be covered by the Act, rather than
by provisions in the FMA.

Item 94: Section 21 (definition of primary dispute resolution processes)

40. The term `primary dispute resolution' is removed from both the Act and the FMA
by the Bill. See item 87 for details.

Item 95: Section 21

41. As set out at item 87, the Bill removes the term `primary dispute resolution' from
the FMA and replaces it with the term `dispute resolution'. Accordingly this item
replaces the definition of `primary dispute resolution' in section 21, which is repealed
by item 94, with a definition of `dispute resolution'.



                                          122
Item 96: Section 22

42. This item is consequential to the replacement of the term `primary dispute
resolution' with `dispute resolution' in the FMA.

Item 97: Section 23 (including the note)

43. This item is consequential to the replacement of the term `primary dispute
resolution' with `dispute resolution' in the FMA.

Item 98: Section 24

44. This item is consequential to the replacement of the term `primary dispute
resolution' with `dispute resolution' in the FMA.

Item 99: Subsection 25(1)

45. This item is consequential to the replacement of the term `primary dispute
resolution' with `dispute resolution' in the FMA.

Item 100: Subsection 27(1)

46. This item is consequential to the replacement of the term `primary dispute
resolution' with `dispute resolution' in the FMA.

Item 101: Subsections 27(2), 28(1) and (2), and 29(1)

47. This item is consequential to the replacement of the term `primary dispute
resolution' with `dispute resolution' in the FMA.

Item 102: Paragraph 29(2)(a)

48. This item is consequential to the replacement of the term `primary dispute
resolution' with `dispute resolution' in the FMA.

Item 103: Subparagraphs 29(2)(b)(i) and (ii)

49. This item is consequential to the replacement of the term `primary dispute
resolution' with `dispute resolution' in the FMA.

Item 104: Paragraph 29(2)(c)

50. This item is consequential to the replacement of the term `primary dispute
resolution' with `dispute resolution' in the FMA.




                                        123
Item 105: Section 30

51. This item is consequential to the replacement of the term `primary dispute
resolution' with `dispute resolution' in the FMA.

Item 106: After Division 1 of Part 7

Division 1A ­ Administration of Federal Magistrates Court's family services

52. This item inserts a new Division 1A into Part 7 of the FMA, to deal with the
administration of the Federal Magistrates Court's family services. This Division
mirrors new Division 1A of Part IVA of the Act, inserted by item 42 of this Schedule.

Section 93A Chief Executive Officer has functions of family consultants

53. This section mirrors new section 38BA of the Act.

54. Section 93A confers the functions to be performed by family consultants under
section 11A of the Act on the Chief Executive Officer of the Federal Magistrates
Court.

55. This conferral is required as section 93B allows the Chief Executive Officer of
the FMA to delegate powers, functions and duties in relation to the functions of
family consultants mentioned in section 11A of the Act. The Chief Executive Officer
cannot delegate functions that he or she does not have, so, in order for section 93B to
work as intended, functions to be performed by family consultants under proposed
section 11A must be conferred on the Chief Executive Officer.

Section 93B Chief Executive Officer may delegate powers and functions that relate to
family consultants

56. This section permits the Chief Executive Officer to delegate those functions
conferred under section 93A, to allow the Chief Executive Officer to control the work
flow to individual family consultants, to ensure that they are able to provide services
to the court and people involved in proceedings in the most efficient and effective
way.

57. The manner in which the Chief Executive Officer chooses to delegate such
functions will be a decision for him or her. For example, the Chief Executive Officer
may choose to delegate the functions of family consultants to a `Principal family
consultant'. The Bill has been designed to allow maximum flexibility for the CEO in
this regard.

Section 93C Chief Executive Officer may give directions that relate to family services
functions

58. The Chief Executive Officer of the Federal Magistrates Court has power, under
subsection 96(2) of the FMA, to do all things necessary or convenient to be done for
the purpose of assisting the Chief Federal Magistrate to manage the administrative
affairs of the Federal Magistrates Court. This situation will not be changed by the
proposed amendments.


                                          124
59. To put the matter beyond doubt, section 93C clarifies that the Chief Executive
Officer may give directions to family consultants, and court officers or staff members
performing the functions of a family counsellor or family dispute resolution
practitioner.

Section 93D Chief Executive Officer may authorise officer or staff member to act as
family counsellor or family dispute resolution practitioner

60. Sections 10C and 10G of the Act explain who is a `family counsellor' or a
`family dispute resolution practitioner'. One category of family counsellor and
family dispute resolution practitioner is a person who is authorised by the Chief
Executive Officer of the Federal Magistrates Court, to act as a family counsellor
under this section (as per paragraphs 10C(1)(d) and 10G(1)(d)).

61. Subsection 93D(3) ensures that family consultants who are authorised by the
Chief Executive Officer, under this section, to provide family counselling or family
dispute resolution for the Federal Magistrates Court do not combine the two roles, by,
for example, attempting to provide services as both a family consultant and a family
dispute resolution practitioner in the one case. It is imperative that the work of family
consultants is kept separate from the work of family counsellors and family dispute
resolution practitioners as the confidentiality and admissibility applying to the
processes are completely different and it would be impossible for a practitioner to
offer both types of services without compromising each one.

Item 107: Paragraph 87(1)(f)

62. This amendment is consequential to the amendments to the terminology
employed in the Act and the FMA.

Item 108: Subsection 87(2)

63. This amendment is consequential to the amendments to the terminology
employed in the Act and the FMA.

Item 109: At the end of subsection 99(1)

64. Section 99 of the FMA lists the officers of the Federal Magistrates Court. This
item adds `family consultants' to that list.

Item 110: Paragraph 102(2)(k)

65. This amendment is consequential to the amendments to the terminology
employed in the Act and the FMA.

Item 111: After section 111

Section 111A: Family consultants

66. Family consultants may be officers of the Federal Magistrates Court (as per
Item 109). Section 111A provides that if a family consultant is an officer of the



                                          125
Federal Magistrates Court, he or she is to be engaged under the Public Service Act
1999. This is the position in relation to staff of the Federal Magistrates Court, under
subsection 112(2) of the FMA.

67. The Note to this section clarifies that family consultants who are not officers of
the Federal Magistrates Court may be appointed under regulations made under the
Act.

Item 112: After subsection 115(1)

68. This item mirrors item 44 of this Schedule, which relates to section 38R of the
Act. Section 115 of the FMA allows the Chief Executive Officer of the Federal
Magistrates Court to engage consultants. Item 112 explicitly provides that the Chief
Executive Officer may engage people to perform family counselling and family
dispute resolution.

Item 113: Subsection 115(2)

69. This amendment is consequential to the amendment at item 112.

Marriage Act 1961

Item 114: Section 9D

70. Section 9D of the Marriage Act 1961 refers to organisations that are approved as
counselling organisations under the Act. The section is repealed as a consequence of
the removal of the concept of approved organisations from the Act.

Item 115: Paragraphs 16(2A)(a)

71. This amendment is consequential to the amendments to the terminology
employed in the Act.

Item 116: Paragraph 16(2A)(b)

72. This amendment is consequential to the amendments to the terminology
employed in the Act.

Item 117: Subsection 16(7)

73. This amendment is consequential to the amendments to the terminology
employed in the Act.

Part 4 ­ Transitional matters relating to family counselling and family dispute
resolution

74. Part 4 sets out transitional arrangements. These include the second stage of
amendments to the approval process for organisations to reflect the new terminology
to be introduced into the Act on commencement (which is expected to be 1 July
2006). At this time these amendments will remove the terms `family and child
counselling', `family and child counsellor', `family and child mediation' and `family


                                          126
and child mediator' from the Act. Relatedly, the terms `approved counselling
organisation' and `approved mediation organisation' will be removed from the Act
and replaced with the new terms `approved family counselling organisation' and
`approved family dispute resolution organisation'.

75. Existing services will not be affected by the changes to the approval process.
Item 120 of the Bill provides that if, immediately before Part 3 of Schedule 4
commences, an organisation is approved as a counselling organisation it is, during the
transition period, taken to be approved as a family counselling organisation under
item10E of Schedule 4. Similarly, Item 121 provides that if, immediately before
Schedule 4 commences, an organisation is approved as a mediation organisation it is,
during the transition period, taken to be approved as a family dispute resolution
organisation under item 10N of Schedule 4.

Item 118: Definitions

76. Subsection 118(1) provides that terms used in this Part that are defined in the Act
have the same meaning as they have in that Act. This definition is needed as the
provisions in this Part will not be inserted in the Act, but rather will appear in the Act
created when this Bill is passed by Parliament, that is, the Family Law Amendment
(Shared Parental Responsibility) Act 2005 (the Shared Parental Responsibility Act).

77. Subsection 118(2) sets out the definition of terms used in this Part. The defined
terms are:
         ° `approved family counselling organisation', which is:
                  - an organisation in respect of which an approval is in force
                        under item 120. (Item 120 allows the Attorney-General to
                        approve family counselling organisations during the transition
                        period), or
                    - an organisation that is taken to be an approved family
                        counselling organisation because of item 123. (Item 123
                        provides that organisations that, immediately before the
                        commencement of Part 3 of this Schedule, are approved
                        counselling organisations under section 13A of the Act are
                        taken to be approved as family counselling organisations
                        under item 123).
         °   `approved family dispute resolution organisation', which is:
                    - an organisation in respect of which an approval is in force
                        under item 125. (Item 125 allows the Attorney-General to
                        approve family dispute resolution organisations during the
                        transition period), or
                    - an organisation that is taken to be an approved family
                        counselling organisation because of item 128. (Item 128
                        provides that organisations that, immediately before the
                        commencement of Part 3 of this Schedule, are approved
                        mediation organisations under section 13B of the Act are
                        taken to be approved as family dispute resolution
                        organisations under item 128).



                                           127
         ° `commencement', which is the time at which Part 3 of this Schedule
               commences, which is a date to be fixed by Proclamation (and is expected
               to be 1 July 2006).

         ° `transition period', which is the period that begins at the time Part 3 of
               this Schedule commences (as above this is a date to be fixed by
               Proclamation, and which is expected to be 1 July 2006) and ends on the
               day prescribed by regulations made for the purpose of this definition.
               Such regulations will appear in the Family Law Amendment (Shared
               Parental Responsibility) Regulations 2006 (the Shared Parental
               Responsibility Regulations), which will be created after this Bill is
               passed. It is anticipated that the transition period will be at least three
               years in duration.

Item 119: Persons who are taken to be family counsellors during the transition
period

78. During the `transition period' approved organisations (provided that their
approval status is not terminated or revoked) will be able to continue to authorise
family counsellors and family dispute resolution practitioners as set out in section
10C of the Act. Professionals so authorised will be taken to be accredited during the
transition period.

79. This will ensure that professionals who are currently providing these services,
and people who begin providing family counselling services will continue to offer
these services during the transition period.

Item 120 Approval of family counselling organisations

80. To ensure that professionals who are currently delivering family and child
counselling and family and child mediation are able to continue to offer these services
(which are termed `family counselling' an `family dispute resolution' under the Bill)
without interruption on the introduction of the accreditation regime a transition period
is provided.

81. As a result, the Attorney-General needs to be able to continue to approve
organisations as family counselling organisations during the transition period. This
item allows such approvals to occur. Family counselling organisations approved by
the Attorney-General under this item will also be able to authorise people to provide
family counselling on their behalf in the transition period, provided that their approval
status is not terminated or revoked. The people thus authorised are taken to be
`family counsellors' under section 10C of the Act, and do not, during the transition
period, need to independently meet the Accreditation Rules.

82. The Attorney-General may approve an organisation as a family counselling
organisation under this item only if he or she is satisfied that:

           ·     the organisation is a recipient organisation (that is, the organisation is
                 funded directly under a designated funding program or part of a
                 program), or


                                             128
           ·   there is a recipient organisation in relation to the organisation (that is,
               the organisation seeking approval is not directly funded, but is part of a
               legal entity, or is a member of a consortium, that receives funding
               under a designated program or part of a program, but that funding is
               provided to an organisation other than the organisation seeking
               approval).

83. The need to be able to approve organisations that are not directly funded to
provide family counselling under a designated program, but which have a relationship
to an organisation that is funded in this manner stems from the fact that approved
family counselling organisations will receive funding under the Australian
Government's Family Relationship Services Program (FRSP). In order to receive
funding under the FRSP, organisations must meet the FRSP Program Guidelines. The
Guidelines require funded organisations to be incorporated. As a result, funding may
be provided to individual organisations only and not to a collection of organisations
such as in a consortium. Thus, if a consortium is successful in its application for
funding under the FRSP, the members of the consortium would either need to form a
new legal entity to receive the funding (as anticipated by paragraph 120(3)(a)), or
could nominate a lead organisation to receive the funding, with the remaining
organisations acting as subcontractors (as anticipated by paragraph 120(3)(a)).

84. The requirement that organisations must be funded (whether directly or
indirectly) in order to be approved, reflects current practice, as all approved
organisations are currently funded under the FRSP. Accountability requirements
under the FRSP assist in ensuring a level of quality in the services that are provided
by approved organisations.

85. In order to be approved pursuant to paragraph 120(1)(a) an organisation must be
a recipient organisation. Subitem 120(2) provides that a recipient organisation is an
organisation that receives, or has been approved to receive, funding to provide
services that include family counselling, under a program or part of a program that
has been designated by the Attorney-General. An organisation that individually
applies for, and receives, or is approved to receive, funding under a designated
program to provide services that include family counselling, will be a recipient
organisation and will therefore be eligible for approval as a family counselling
organisation.

86. In order to be approved pursuant to paragraph 120(1)(b) there must be a recipient
organisation in relation to the organisation seeking approval. Subitem 120(3)
provides that an organisation is a recipient organisation in relation to another
organisation (the organisation seeking approval) in two situations.

87. The first situation, covered by paragraph 120(3)(a) occurs when the organisation
seeking approval is a member of an organisation that receives, or has been approved
to receive, funding in order to provide services that include family counselling. This
situation may occur when a number of organisations form a new legal entity in order
to receive funding under the FRSP. (The requirement in the FRSP Guidelines that
organisations must be incorporated in order to receive funding means that a
consortium of organisations cannot be funded, so, in order to receive funding,
members of a consortium would either need to form a new legal entity to receive the


                                          129
funding (as anticipated by here), or nominate a lead organisation to receive the
funding, with the remaining organisations acting as subcontractors (as anticipated by
paragraph 120(3)(a)).

88. The second situation, covered by paragraph 120(3)(b) occurs when an
organisation receives, or has been approved to receive, funding in order to provide
services that include family counselling and that organisation acts on behalf of a
group of organisations that includes the organisation seeking approval. (As set out
above, the requirement in the FRSP Guidelines that organisations must be
incorporated in order to receive funding means that a consortium of organisations
cannot be funded, so, in order to receive funding, members of a consortium would
either need to form a new legal entity to receive the funding (as anticipated by
paragraph 120(3)(a), or nominate a lead organisation to receive the funding, with the
remaining organisations acting as subcontractors (as anticipated here).

89. Subitem 120(4) provides that the Attorney-General may designate, for the
purposes of subitem 120(1), a program or part of a program that is administered by or
on behalf of the Commonwealth Government under which funding is provided to
organisations for the purposes of making family counselling services available.

90. Subitem 120(4) provides that the Attorney-General's designation of funding
programs or parts of programs under subitem 120(4) is not a legislative instrument. A
`legislative instrument' is defined at section 5 of the Legislative Instruments Act 2003.
In general terms, a legislative instrument is a written document that is of a legislative
character and that is made in the exercise of a power designated by Parliament.
Requirements relating to registering, tabling, scrutinising and sunsetting all
Commonwealth legislative instruments are imposed under the Legislative Instruments
Act. Subitem 120(4) has been included to assist readers of the Act, so that they are
aware that the requirements of imposed by the Legislative Instruments Act do not
apply to instruments made under this section.

91. The capacity to approve organisations subject to conditions (as per current
section 13C of the Act) has been removed. It is intended that quality issues should be
addressed through the FRSP funding contracts, as this provides a stringent and
enforceable means of ensuring and addressing service standards.

92. As is currently the case under section 13 of the Act, an organisation may be
approved as both a family counselling and a family dispute resolution organisation.

Item 121 Termination of and revocation of approvals

93. Item 121 provides that organisations must be funded (whether directly or
indirectly) in order to be approved by the Attorney-General as a family counselling
organisation. These organisations will receive funding under the FRSP.
Accountability requirements under the FRSP assist in ensuring a level of quality in
the services that are provided by approved organisations.

94. As approval of, and the capacity to monitor the quality of services delivered by,
organisations is tied to funding, this item provides that an organisation ceases to be
approved as a family counselling organisation under item 120 if the organisation



                                          130
ceases to receive, or be approved to receive, funding (either directly, if the
organisation is a recipient organisation as set out at subitem 120(2), or indirectly, if
there is a recipient organisation in relation to the organisation, as per subitem 120(3))
under a program or part of a program designated by the Attorney-General under
subitem 120(4).

95. Subitem 121(2) provides that if an organisation that is approved under item 120
requests that its approval is revoked, the Attorney-General must revoke that approval.

96. Subitem 121(3) provides that if the Attorney-General revokes a family
counselling organisation's approval under this item, he or she must do so by notice in
writing to the organisation concerned.

Item 122 Minister to publish lists of approved family counselling organisations

97. Item 122 requires the Attorney-General to publish, at least annually, a list of all
approved family counselling organisations. This provision ensures that the public is
able to easily access this information, in the interests of transparency. It reproduces,
in substantive terms, current section 13E of the Act.

Item 123: Approved counselling organisations become approved family
counselling organisations

98. In order to ensure that organisations that have been approved as counselling
organisations by the Attorney-General under section 13A of the Act are able to
continue offering services without interruption throughout the transition period, this
item provides that if, immediately before Part 3 of Schedule 4 commences, an
organisation is approved as a counselling organisation it is, during the transition
period, taken to be approved as a family counselling organisation under item 120.

Item 124: Persons who are taken to be family dispute resolution practitioners
during the transition period

99. To ensure that professionals who are currently delivering family and child
counselling and family and child mediation are able to continue to offer these services
(which are termed `family counselling' an `family dispute resolution' under the Bill)
without interruption on the introduction of the accreditation regime a transition period
is provided.

100. During the `transition period' approved organisations will be able to continue to
authorise family dispute resolution practitioners. Professionals so authorised will be
taken to be accredited during the transition period.

101. The Bill preserves the ability of organisations that are currently approved as
mediation organisations to authorise people to provide family dispute resolution on
their behalf in the transition period, provided that the organisations approval status is
not terminated or revoked during the transition period. The people thus authorised are
taken to be `family dispute resolution practitioners' under section 10G of the Act,
introduced by this Schedule, and do not, during the transition period, need to
independently meet the Accreditation Rules.



                                          131
102. The Attorney-General will also be able to continue to approve organisations as
family dispute resolution organisations during the transition period, under item 125.
Family dispute resolution organisations approved by the Attorney-General under that
item will also be able to authorise people to provide family counselling on their behalf
in the transition period, provided that their approval status is not terminated or
revoked. The people thus authorised are taken to be `family counsellors' under
section 10Ce of the Act, introduced by this Schedule, and do not, during the transition
period, need to independently meet the Accreditation Rules.

103. In addition to being authorised by an approved mediation organisation, the
current definition of `family and child mediator" includes people who meet the
requirements set out in Part 5 of the Regulations (paragraph (c) of the definition of
family and child mediator in subsection 4(1) of the Act). In order to ensure that these
people can continue to provide services, a person who is a family and child mediator
under paragraph (c) of the definition of family and child mediator (that is, because
they meet the requirements set out in the Regulations, or who meet those
requirements in the first twelve months of the transition period, will also be taken to
be family dispute resolution practitioners under section 10J of the Act.

Item 125 Approval of family dispute resolution organisations

104. To ensure that professionals who are currently delivering family and child
counselling and family and child mediation are able to continue to offer these services
(which are termed `family counselling' an `family dispute resolution' under the Bill)
without interruption on the introduction of the accreditation regime a transition period
is provided.

105. As a result, the Attorney-General needs to be able to continue to approve
organisations as family dispute resolution organisations during the transition period.
This item allows such approvals to occur. Family dispute resolution organisations
approved by the Attorney-General under this item will be able to authorise people to
provide family dispute resolution on their behalf in the transition period, provided that
their approval status is not terminated or revoked. The people thus authorised are
taken to be `family dispute resolution practitioners' under section 10J of the Act,
introduced by this Schedule, and do not, during the transition period, need to
independently meet the Accreditation Rules.

106. The Attorney-General may approve an organisation as a family dispute
resolution organisation under this item only if he or she is satisfied that:
    (a) the organisation is a recipient organisation (that is, the organisation is funded
        directly under a designated funding program or part of a program), or
    (b) there is a recipient organisation in relation to the organisation (that is, the
       organisation seeking approval is not directly funded, but is part of a legal
       entity, , or is a member of a consortium, that receives funding under a
       designated program or part of a program, but that funding is provided to an
       organisation other than the organisation seeking approval).
       The need to be able to approve organisations that are not directly funded to
       provide family dispute resolution under a designated program, but which have
       a relationship to an organisation that is funded in this manner stems from the


                                          132
       fact that approved family dispute resolution organisations will receive funding
       under the Australian Government's Family Relationship Services Program
       (FRSP). In order to receive funding under the FRSP, organisations must meet
       the FRSP Program Guidelines. The Guidelines require funded organisations
       to be incorporated. As a result, funding may be provided to individual
       organisations only and not to a collection of organisations such as in a
       consortium. Thus, if a consortium is successful in its application for funding
       under the FRSP, the members of the consortium would either need to form a
       new legal entity to receive the funding (as anticipated by paragraph 125(3)(a)),
       or could nominate a lead organisation to receive the funding, with the
       remaining organisations acting as subcontractors (as anticipated by paragraph
       125(3)(a)).

2. The requirement that organisations must be funded (whether directly or indirectly)
in order to be approved, reflects current practice, as all approved organisations are
currently funded under the FRSP. Accountability requirements under the FRSP assist
in ensuring a level of quality in the services that are provided by approved
organisations.

3. In order to be approved pursuant to paragraph 125(1)(a) an organisation must be a
recipient organisation. Subitem 125(2) provides that a recipient organisation is an
organisation that receives, or has been approved to receive, funding to provide
services that include family dispute resolution, under a program or part of a program
that has been designated by the Attorney-General. An organisation that individually
applies for, and receives, or is approved to receive, funding under a designated
program to provide services that include family dispute resolution , will be a recipient
organisation and will therefore be eligible for approval as a family dispute resolution
organisation.

4. In order to be approved pursuant to paragraph 125(1)(b) there must be a recipient
organisation in relation to the organisation seeking approval. Subitem 125(3)
provides that an organisation is a recipient organisation in relation to another
organisation (the organisation seeking approval) in two situations.

5. The first situation, covered by paragraph 125(3)(a) occurs when the organisation
seeking approval is a member of an organisation that receives, or has been approved
to receive, funding in order to provide services that include family dispute resolution.
This situation may occur when a number of organisations form a new legal entity in
order to receive funding under the FRSP. (As set out above, the requirement in the
FRSP Guidelines that organisations must be incorporated in order to receive funding
means that a consortium of organisations cannot be funded, so, in order to receive
funding, members of a consortium would either need to form a new legal entity to
receive the funding (as anticipated by here), or nominate a lead organisation to
receive the funding, with the remaining organisations acting as subcontractors (as
anticipated by paragraph 125(3)(b)).

6. The second situation, covered by paragraph 125(3)(b) occurs when an
organisation receives, or has been approved to receive, funding in order to provide
services that include family dispute resolution and that organisation acts on behalf of
a group of organisations that includes the organisation seeking approval. (As set out


                                          133
above, the requirement in the FRSP Guidelines that organisations must be
incorporated in order to receive funding means that a consortium of organisations
cannot be funded, so, in order to receive funding, members of a consortium would
either need to form a new legal entity to receive the funding (as anticipated by
paragraph 125(3)(a), or nominate a lead organisation to receive the funding, with the
remaining organisations acting as subcontractors (as anticipated here).

7. Subitem 125(4) provides that the Attorney-General may designate, for the
purposes of subitem 125(1), a program or part of a program that is administered by or
on behalf of the Commonwealth Government under which funding is provided to
organisations for the purposes of making family dispute resolution services available.

8. Subitem 125(4) provides that the Attorney-General's designation of funding
programs or parts of programs under subitem 125(4) is not a legislative instrument. A
`legislative instrument' is defined at section 5 of the Legislative Instruments Act 2003.
In general terms, a legislative instrument is a written document that is of a legislative
character and that is made in the exercise of a power designated by Parliament.
Requirements relating to registering, tabling, scrutinising and sunsetting all
Commonwealth legislative instruments are imposed under the Legislative Instruments
Act. Subitem 125(4) has been included to assist readers of the Act, so that they are
aware that the requirements of imposed by the Legislative Instruments Act do not
apply to instruments made under this section.

9. The capacity to approve organisations subject to conditions (as per current section
13C of the Act) has been removed. It is intended that quality issues should be
addressed through the FRSP funding contracts, as this provides a stringent and
enforceable means of ensuring and addressing service standards.

10. As is currently the case under section 13 of the Act, an organisation may be
approved as both a family counselling and a family dispute resolution organisation.

Item 126 Termination of and revocation of approvals

11. Item 125 provides that organisations must be funded (whether directly or
indirectly) in order to be approved by the Attorney-General as a family dispute
resolution organisation. These organisations will receive funding under the FRSP.
Accountability requirements under the FRSP assist in ensuring a level of quality in
the services that are provided by approved organisations.

12. As approval of, and the capacity to monitor the quality of services delivered by,
organisations is tied to funding, this item provides that an organisation ceases to be
approved as a family dispute resolution organisation under item 125 if the
organisation ceases to receive, or be approved to receive, funding (either directly, if
the organisation is a recipient organisation as set out at subitem 125(2), or indirectly,
if there is a recipient organisation in relation to the organisation, as per subitem
125(3)) under a program or part of a program designated by the Attorney-General
under subitem 125(4).

13. Subitem 126(2) provides that if an organisation that is approved under item 10N
requests that its approval is revoked, the Attorney-General must revoke that approval.



                                           134
14. Subitem 126(3) provides that if the Attorney-General revokes a family dispute
resolution organisation's approval under this item, he or she must do so by notice in
writing to the organisation concerned.

Item 127 Minister to publish lists of approved family dispute resolution
organisations

15. Item 127 requires the Attorney-General to publish, at least annually, a list of all
approved family dispute resolution organisations. This provision ensures that the
public is able to easily access this information, in the interests of transparency. It
reproduces, in substantive terms, current section 13E of the Act.

Item 128: Approved mediation organisations become approved family dispute
resolution organisations

16. In order to ensure that organisations that have been approved as mediation
organisations by the Attorney-General under section 13B of the Act are able to
continue offering services without interruption throughout the transition period, this
item provides that if, immediately before Part 3 of Schedule 4 commences, an
organisation is approved as a mediation organisation it is, during the transition period,
taken to be approved as a family dispute resolution organisation under item 125.

Part 5 ­ Application and transitional provisions relating to other changes to
dispute resolution

Item 129: Definition of commencement

17. This item defines that in this Part of Schedule 4 `commencement' is the time at
which Part 3 of this Schedule commences, which is a date to be fixed by
Proclamation, and which is expected to be 1 July 2006.

Item 130: Notices filed under section 15

18. Currently section 15 of the Act allows a party to a marriage to file a notice in the
Family Court or the Family Court of Western Australia, stating that the party wishes
to be assisted by the counselling facilities of that court. If such a notice is filed,
arrangements must be made for the parties to the marriage to attend an interview with
a family and child counsellor to assist with a possible reconciliation, or to improve
their relationship with each other or with any of their children.

19. This item provides that if at commencement (see item 129) a notice under current
section 15 of the Act has been filed, but has not yet been acted on, an appropriate
officer of the court in which the notice was filed must arrange for the parties to the
marriage to see a family counsellor.

Item 131: Arbitration awards registered under section 19D are taken to be
registered under section 13H




                                          135
20. Current subsection 19D(5) of the Act provides that a party to an award made in
arbitration may register the award in the court that ordered the arbitration under that
section.

21. Current subsection 19E(2) provides that a party to an award made in private
arbitration may register the award in any court with jurisdiction under the Act.

22. An award that is registered with a court under subsections 19D(5) or 19E(5) has
the same effect as a decree made by the court in which it is registered.

23. This item provides that an arbitration award that had been registered under
sections 19D or 19E of the Act at any time before commencement (see item 129) and
is still registered immediately before commencement, continues to have effect as if it
had been registered under new section 13H of the Act. Section 13H reproduces
current subsections 19D(5) and 19E(2) of the Act (with relevant changes to
terminology).

Item 132: Powers under Division 4 of Part IIIB of the Family Law Act 1975 may
be exercised in relation to section 19D arbitration and private arbitration

24. Currently the Act refers to two types of arbitration ­ `section 19D arbitration' and
`private arbitration'. These terms are replaced in the Bill by `section 13E arbitration'
and `relevant property or financial arbitration' (see subsection 10L(2), inserted by
item 36 of this Schedule).

25. This item provides that for the purposes of the sections 13G, 13H, 13J and 13K, a
reference to section 13E arbitration includes a reference to section 19D arbitration;
and a reference to relevant property or financial arbitration includes a reference to
private arbitration. Subsection 19E(2) provides that a party to an award made in
private arbitration may register the award in any court with jurisdiction under the Act.

Item 133: Subsection 44(1B) certificates

26. Current subsection 44(1B) of the Act provides that an application for divorce
shall not be heard (without the leave of the court) unless a certificate is filed stating
that the parties have considered reconciliation with the assistance of a family and
child counsellor or another suitable person or organisation.

27. Item 47 of this Schedule updates the titles of the professionals from whom a
certificate may be obtained in line with the changes to terminology employed in the
Act.

28. This item provides that a certificate provided by a family and child counsellor, or
other appropriate person, in line with the requirements imposed under subsection
44(1B) before commencement may be filed in relation to an application for divorce to
satisfy the requirement under section 44(1B) as amended by this Schedule.

Item 134: Request for counselling under section 62C or 62CA

29. Current sections 62C and 62CA of the Act allow parties to proceedings, and other
specified people, to file in the Family Court or the Family Court of Western Australia


                                           136
(under section 62C), or the Federal Magistrates Court (under section 62CA) a notice
requesting the assistance of the counselling facilities of that court. If such a notice is
filed, specified court staff must arrange for the parties to be interviewed by a family
and child counsellor or a welfare officer.

30. This item provides that if a notice has been filed under section 62C or 62CA of
the Act, but has, at commencement, not been acted upon, an appropriate officer of the
court in which the notice was filed must arrange for the parties to be interviewed by a
family counsellor.

Item 135: Order under subsection 62F(2)

31. Subsection 62F(2) of the Act allows the court to make an order directing the
parties to proceedings where the care, welfare and development of a child is relevant,
to attend a conference with a family and child counsellor or a welfare officer.

32. This item provides that if, at commencement, an order under subsection 62F(2) of
the Act has not yet been complied with, the parties may attend a conference with a
family counsellor, and such attendance will be regarded as complying with the order.

Item 136: Reports under section 62G

33. In proceedings where the care, welfare and development of a child is relevant,
subsection 62G(2) of the Act allows the court to direct a family and child counsellor
or welfare officer to give the court a report on relevant matters. Items 53 to 55 of this
Schedule replace the references to `family and child counsellor or welfare officer' in
section 62G with `family consultant'.

34. This item provides that if a family and child counsellor or welfare officer has
been directed, under subsection 62G(2), to give the court a report and, at
commencement, has not yet done so, he or she must still provide the report and
references in the amended section 62G to a `family consultant' are taken to be
references to the person who supplies the report.

Item 137: Pre-parenting order counselling for the purposes of section 65F

35. Current section 65F provides that the court must not make a parenting order
(subject to some exceptions) unless the parties to proceedings have attended a
conference with a family and child counsellor or welfare officer to discuss the matter
to which the proceedings relate. Items 57 and 58 of this Schedule replace the
references to `family and child counsellor or welfare officer' in section 65G with
`family consultant'.

36. This item provides that if, before commencement, parties to proceedings have
attended a conference with a family and child counsellor or welfare officer to discuss
the matters to which the proceedings relate, the attendance at that conference is taken
to satisfy the requirement in section 65F(2) as amended by this Bill to attend a
conference with a family consultant.

Item 138: Supervision etc. of parenting orders



                                           137
37. Current section 65L provides that if a court makes a parenting order it may also
make an order requiring a family and child counsellor or welfare officer to supervise
compliance with that order or give assistance to a party to comply with that order.

38. This item provides that if such an order is made before commencement, the court
may make another order substituting a family consultant for the family and child
counsellor or welfare officer specified in the original order.

Item 139: Regulations may prescribe transitional matters

39. This item provides that regulations may be made that prescribe matters:
               ° of a transitional nature relating to the amendments or repeals in
                  this Schedule
               ° required or permitted by this Schedule to be prescribed, or
               ° necessary or convenient to be prescribed for carrying out or giving
                  effect to this Schedule.




                                         138
SCHEDULE 5 ­ REPRESENTATION OF CHILD'S INTERESTS BY
INDEPENDENT CHILDREN'S LAWYER

40. Schedule 5 implements a number of the recommendations made by the Family
Law Council (the Council) in its report, Pathways for Children: A review of
children's representation in family law (the Report).

41. The former Attorney-General, the Hon Daryl Williams AM QC MP, requested
that the Council prepare the Report as a response to recommendation 21 of the Family
Pathways Advisory Group's 2001 report, Out of the Maze: Pathways to the Future for
Families Experiencing Separation. In doing so, the Council was requested to review
the role and the basis of appointment of child representatives, particularly in light of
the Council's 1996 report, Involving and Representing Children in Family Law.

42. The amendments aim to strengthen the role of the child representative by
providing further guidance to lawyers acting in the role. Along with the Guidelines
for child representatives: Practice directions and guidelines (the Guidelines),
released by the Family Court of Australia, the amendments also aim to provide clarity
and understanding to those parties participating in proceedings where a child
representative is involved.

Part 1 - Amendments

Family Law Act 1975

Item 1 ­ Subsection 4(1) (definition of child representative)

43. Item 1 repeals the definition of `child representative'. The role of the `child
representative' will now be referred to as `independent children's lawyer' to help
children and parents understand the neutrality and independence of the role. The
Council considered that the term `child representative' creates confusion, particularly
for children who may expect that the child's representative will act on the child's
instructions.

44. In the Report, the Council recommended that the term `independent lawyer' be
used. However, the Government considers that the term `independent children's
lawyer' is more descriptive and will be of use in identifying that the independent
children's lawyer is associated with the child and not the other parties involved in the
proceedings.

Item 2 ­ Subsection 4(1)

45. Item 2 inserts a definition of `independent children's lawyer' into the
consolidated dictionary at section 4 of the Act. Section 4 sets out the definitions for
Part VII of the Act. `Independent children's lawyer' will mean a lawyer that
represents the child's interests in proceedings, where that lawyer has been appointed
under a court order made under subsection 68L(2) of the Act.




                                          139
46. Subsection 68L(2) explains that a court may order that a child's interests be
independently represented by a lawyer if it appears that such representation is
necessary in the proceedings. The court may also make any other such orders as it
considers necessary to secure that representation.

Item 3 ­ Subsection 4(1)

47. Item 3 inserts a definition of `lawyer' into the consolidated dictionary at section 4
of the Act. Subsection 4 sets out the definitions for Part VII of the Act. A `lawyer'
means a person enrolled as a legal practitioner of a federal court or the Supreme Court
of a State or Territory.

48. In its Report, the Council concluded that the role of a child representative should
be carried out by an appropriately trained lawyer, rather than a child and family
counsellor. The Council noted that many elements of the child representative's role
presume prior legal training and experience in applying law and legal principle to a
range of scenarios.

Item 4 ­ Section 60C (table item 10)

49. Item 4 repeals item 10 of the table at section 60C that provides an outline of the
provisions in Part VII of the Act. Part VII is the part of the Act that deals with
children. This item replaces item 10 of the table so that it only refers to the
representation of the child's interests in proceedings by an independent children's
lawyer. This item also removes the references to the determination of what is in a
child's best interests, as these provisions have now been relocated to Division 1 of the
Act (Schedule 1, item 9) to give greater emphasis and visibility to those provisions.

Item 5 ­ Division 10 of Part VII

50. Item 5 repeals and replaces the existing Division 10. This Division now deals
solely with the independent representation of a child's interests. The existing
provisions that relate to the best interests of children (Subdivision B, Division 10 of
the Act) have now been relocated to Division 1, Part VII of the Act (Schedule 1, item
9) to give greater emphasis and visibility to those provisions.

Section 68L ­ Court order for independent representation of child's interests

51. Section 68L provides the court with power to make an order for the appointment
of an independent children's lawyer to represent a child's interests in proceedings in
which the child's best interest are the paramount, or a relevant, consideration.

52. Subsection 68L(1) explains that this section applies to proceedings under the Act
in which the best interests of the child are, or the child's welfare is, the paramount or
a relevant consideration. This provision is in exactly the same terms as
subsection 68L(1) of the existing Act. The reason that it is in this Bill is because the
whole of Division 10 has been repealed.




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53. Subsection 68L(2) states that a court may order that a child's interests be
independently represented by an independent children's lawyer if it appears that such
representation is necessary in the proceedings. Under this subsection, the court may
also make such other orders as it considers necessary to secure the independent
representation of the child's interests.

54. This provision is similar to subsection 68L(2) of the existing Act, but changes the
terminology to `independent children's lawyer' and clarifies that it is the child's
interests that will be represented (as explained below). The reason that it is in this
Bill is because the whole of Division 10 has been repealed.

55. Subsection 68L(2) states that a lawyer should represent a child's `interests',
rather than represent the child. In its Report, the Council recommended that child
representatives should act as independent advocates for the best interests of the child,
rather than act on the instructions of the child. The Council considered that the
feature of assisting the court while simultaneously allowing the child's voice to be
heard is best fulfilled in this way. The Government considers that this is appropriate
given the legislative requirement for the court to make decisions that are in the best
interests of the child.

56. Subsection 68L(3) provides that in proceedings for the return of a child, pursuant
to the Hague Convention on the Civil Aspects of International Child Abduction
(the Hague Convention), the court may only make an order that a child's interests be
independently represented by a lawyer if there are exceptional circumstances to
justify the court doing so. The court must specify in the order those exceptional
circumstances.

57. This provision is similar to subsection 68L(3) of the existing Act, but changes the
terminology to `independent children's lawyer' and clarifies that it is the child's
interests that will be represented. The reason that it is in this Bill is because the
whole of Division 10 has been repealed.

58. Under the Hague Convention, generally a country is required to send a child
abducted to its jurisdiction, back to the country of habitual residence of the child prior
to the abduction from that country. There should be no need, therefore, to inquire into
the best interests of the child in Australia. That would be a matter for the country of
habitual residence of the child.

59. Subsection 68L(4) explains that a court may make an order for the independent
representation of a child's interests by a lawyer in the proceedings on its own
initiative or on the application of the child, an organisation concerned with the
welfare of children or any other person.

60. This provision is similar to subsection 68L(4) of the existing Act, but changes the
terminology to `independent children's lawyer'. The reason that it is in this Bill is
because the whole of Division 10 has been repealed.

61. New subsection 68L(5) clarifies that the court may make an order under
paragraph 68L(2)(b) for the purpose of allowing the lawyer who is to represent the



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child's interests to find out what the child's views are on the matters to which the
proceedings relate. The purpose of this section is to clarify that the independent
children's lawyer can seek the views of the child, despite the requirement that the
independent children's lawyer come to their own conclusion on the available material
about what is in the best interests of the child. Subsection 68L(5) does not limit
paragraph 68L(2)(b) and the court may make other orders under that paragraph as it
considers appropriate.

62. The note following subsection 68L(5) provides guidance to readers by referring
them to section 60CE. That section states that a child cannot be required to express
his or her views in relation to any matter. However, except for exceptional
circumstances, it is expected that independent children's lawyers will have contact
with children to discuss their views.

63. In accordance with subsection 68L(6), subsection 68L(5) will not apply where
complying with that subsection would be inappropriate because of the child's age or
maturity or some other special circumstance. For example, although the child may
have firm views on which parent the child would like to live with, the child may have
special needs that are best served by living with the other parent.

Section 68LA ­ Role of independent children's lawyer

64. New section 68LA sets out the role of the independent children's lawyer. In its
Report, the Council expressed concerns about the minimal direction and guidance
concerning the role of the child representative in the Act and recommended that this
be addressed.

When section applies

65. Subsection 68LA(1) provides that the section will apply where an independent
children's lawyer has been appointed in proceedings under the Act.

General nature of role of independent children's lawyer

66. Subsection 68LA(2) provides direction on the general nature of the role of the
independent children's lawyer. The subsection states that an independent children's
lawyer must form an independent view of what is in the best interests of the child and
inform the court of that view. The independent children's lawyer must also act in
relation to the proceedings in what the independent children's lawyer believes to be in
the best interests of the child.

67. In accordance with the recommendation of the Council, the intention of such a
provision is to clarify that the independent children's lawyer should act as an
independent advocate for the best interests of the child, rather than act on the
instructions of the child. The Government considers that this is appropriate, given the
legislative requirement for a court to make a decision in the best interests of the child.

68. Subsection 68LA(3) states that if an independent children's lawyer is satisfied
that a particular course of action is in the best interests of the child, the lawyer must



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make a submission to the court suggesting the adoption of that particular course of
action. The intention of this provision is to provide guidance to the independent
children's lawyer in situations where what they consider to be in the best interests of
the child differs from the views expressed by the child. For example, where a child
wants to live with the mother, the independent children's lawyer may consider that
the child should reside with the father due to the mother's illness or incapacity.
Subsection 68LA(3) does not limit the consideration of the independent children's
lawyer in coming to a view about the best interests of the child referred to in
paragraph 68LA(2)(a).

69. In addition to subsection 68LA(3), subsection 68LA(4) provides further
confirmation that an independent children's lawyer is not the legal representative of
the child and is not obliged to act on the child's instructions in relation to the
proceedings. The intention of this provision is to provide absolute clarity on the
precise role and obligations of the independent children's lawyer.

Specific duties of independent children's lawyers

70. Subsection 68LA(5) provides guidance to lawyers acting in the role of the
independent children's lawyer and clarity to readers about the specific duties of the
role. The Council considered the basic elements of the role of the child representative
as set down by the Full Court of the Family Court in the case of P and P (1995) FLC
92-615 (P and P) should be incorporated into the Act. The elements are as follows:

       a. Act in an independent and unfettered way in the interests of the child.

       b. Act impartially, but if thought appropriate, make submissions suggesting the adoption by
          the court of a particular course of action if he or she considers that the adoption of such a
          course is in the best interests of the child.

       c. Inform the court by proper means of the children's wishes in relation to any matter in the
          proceedings. In this regard the separate representative is not bound to make submissions
          on the instructions of the child or otherwise but is bound to bring the child's expressed
          views to the attention of the court.

       d. Arrange for the collation of expert evidence and otherwise ensure that all evidence
          relevant to the welfare of the child is before the court.

       e. Test by cross-examination where appropriate the evidence of the parties and their
          witnesses.

       f.   Ensure that the views and attitudes brought to bear on the issues before the court are
            drawn from the evidence and not from a personal view or opinion of the case.

       g. Minimise the trauma to the child associated with the proceedings.

       h. Facilitate an agreed resolution to the proceedings.

2. The Council recommended that the P and P elements be included in the
legislation to address the minimal direction and guidance concerning the role of the
child representative currently given in the Act.



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3. Paragraph 68LA(5)(a) is based upon the direction in P and P that child
representatives should act in an independent and unfettered way in the interests of the
child. The provision states that an independent children's lawyer must act impartially
in dealings with the parties to the proceedings. This provision acknowledges that an
important part of the role of the independent children's lawyer is the function played
outside of the courtroom. The independent children's lawyer may be working with all
the parties to the proceedings to find creative solutions to the issues in dispute.

4. Paragraph 68LA(5)(b) directs that an independent children's lawyer must inform
the court of the views that the child has expressed in relation to the matters to which
the proceedings relate. This is consistent with the requirement of the court to
consider the views of the child in making parenting orders that are in the best interests
of the child. This again confirms that the independent children's lawyer is not bound
to make submissions on the instructions of the child or otherwise, but is bound to
bring the child's expressed views to the attention of the court. It is important to note
that according to section 60CE, a person cannot require a child to express his or her
views in relation to any matter.

5. In proceedings involving a report or other document that relates to the child,
subparagraph 68LA(5)(c)(i) directs the independent children's lawyer to analyse the
report or document to identify those matters that the independent children's lawyer
considers to be the most significant for determining what is in the best interests of the
child. Under subparagraph 68LA(5)(c)(ii), the independent children's lawyer must
ensure that those matters are properly drawn to the court's attention.

6. Paragraph 68LA(5)(d) states that an independent children's lawyer should also
endeavour to minimise the trauma to the child associated with the proceedings. This
is based upon the similar factor in P and P. Clearly, the best interests of the child are
served by reducing the stresses that such proceedings may inflict on a child. This
provision is also consistent with other measures contained in Schedule 3 of this Bill to
introduce a `less adversarial' process for child-related proceedings.

7. Paragraph 68LA(5)(e) directs that an independent children's lawyer must
facilitate an agreed resolution of matters at issue in the proceedings to the extent to
which doing so is in the best interests of the child. Again, this is consistent with P
and P. The Council noted that child representatives have a role to play in facilitating
dispute resolution, taking into consideration their view of the best interests of the
child.

Disclosure of information

8. In accordance with the Council's recommendation, new subsections 68LA(6), (7)
and (8) provide clarification on the level of confidentiality that exists in the
relationship between the independent children's lawyer and the child.

9. Subsection 68LA(6) provides that the independent children's lawyer is not under
an obligation to disclose to the court and, importantly, cannot be required to disclose
to the court any information that the child communicates to the independent
children's lawyer. This is in accordance with the Council's recommendation that the



                                          144
child representative cannot be required, by any party or the court, to disclose
information communicated to the child representative by the child. This is subject to
subsection 68LA(7).

10. The intention of these provisions is to clarify the confidential relationship
between the independent children's lawyer and the child and to enable a professional
relationship to be established between them. Client legal privilege cannot operate for
an independent children's lawyer who is acting in a best interests capacity, as the
independent children's lawyer has an overriding duty to the court to present all
relevant evidence and make submissions in the child's best interests. This provision
will protect an independent children's lawyer from being required by any party or
court to disclose information communicated to the independent children's lawyer by
the child.

11. Subsection 68LA(7) provides that the independent children's lawyer may
disclose to the court any information that the child communicates to them, if the
independent children's lawyer considers the disclosure to be in the best interests of
the child.

12. Subsection 68LA(8) states that the independent children's lawyer may disclose
information to the court if the independent children's lawyer considers it to be in the
child's best interests, even if this disclosure is made against the wishes of the child.
This provision further confirms that the independent children's lawyer is acting as a
best interests advocate, and not on the instructions of the child. It also balances the
need for the independent children's lawyer to establish a professional relationship
with the child while operating in the child's best interests.

Section 68M ­ Order that child be made available for examination

13. Section 68M gives the court power to order a person to make a child available for
examination for the purposes of preparing a report. This section is in similar terms to
section 68M in the existing Act, but changes the terminology to `independent
children's lawyer'. The reason that it is in this Bill is because the whole of
Division 10 has been repealed.

14. Subsection 68M(1) explains that this section applies in proceedings under this
Act if an independent children's lawyer has been appointed to represent a child's
interests.

15. Subsection 68M(2) provides that the court may, on the application by the
independent children's lawyer, order a person to make the child available as specified
in the order, for an examination to be made for the purposes of preparing a report
about the child. This report is for use by the independent children's lawyer in
connection with the proceedings.

16. Subsection 68M(3) provides that the order that a child be made available for
examination can be directed to a parent of the child, a person who has parental
responsibility for the child or with whom the child may live, spend time or
communicate with under a parenting order. This provision reflects the terminology


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changes contained in Schedule 8 of this Bill to remove the references to `residence'
and `contact'.

Item 6 ­ Subparagraph 69W(2)(b)(ii)

17. Subparagraph 69W(2)(b)(ii) details the circumstances in which parentage testing
orders may be made. This item substitutes the reference to `a person representing the
child' with `an independent children's lawyer representing the child's interests'. This
is in accordance with the removal of references to `child representative' in item 1 of
this Schedule.

Item 7 ­ Subparagraph 69ZC(3)(b)(ii)

18. Subparagraph 69ZC(3)(b)(ii) details the circumstances in which a parentage
testing report may be received in evidence. This item substitutes the reference to `a
person representing the relevant child' with `an independent children's lawyer
representing the relevant child's interests'. This is in accordance with the removal of
references to `child representative' in item 1 of this Schedule.

Item 8 - Subsection 117(3)

19. Subsection 117(3) gives the court power to make an order for the payment of the
child representative's costs. This item replace the reference to `a child representative'
at the beginning of the provision with one to `an independent children's lawyer for a
child'. This is in accordance with the removal of references to `child representative'
in item 1 of this Schedule.

Item 9 ­ Subsection 117(3)

20. Subsection 117(3) gives the court power to make an order for the payment of the
child representative's costs. This item repalces the reference to `the child
representative' at the end of the provision with one to `the independent children's
lawyer'. This is in accordance with the removal of references to `child representative'
in item 1 of this Schedule.

Item 10 ­ Subsection 117(4)

21. Subsection 117(4) details the circumstances where a court must not order
payment of a child representative's costs. This item replaces the reference to `a child
representative' at the beginning of the provision with one to `an independent
children's lawyer for a child'. This is in accordance with the removal of references to
`child representative' in item 1 of this Schedule.

Item 11 ­ Subsection 117(4)

22. Subsection 117(4) details the circumstances where a court must not order
payment of a child representative's costs. This item replaces the reference to `the
child representative' at the end of the provision with one to `the independent




                                          146
children's lawyer' (wherever occurring). This is in accordance with the removal of
references to `child representative' in item 1 of this Schedule.

Item 12 ­ Subsection 117(5)

23. Subsection 117(5) states that the funding of the child representative must be
disregarded in the court's consideration of a costs order. This item replaces the
reference to `a child representative' at the beginning of the provision with one to `an




                                          147
independent children's lawyer'. This is in accordance with the removal of references
to `child representative' in item 1 of this Schedule.

Item 13 ­ Subsection 117(5)

24. Subsection 117(5) states that the funding of the child representative must be
disregarded in the court's consideration of a costs order. This item replaces the
reference to `the child representative', where it appears later on in the provision, with
one to `the independent children's lawyer'. This is in accordance with the removal of
references to `child representative' in item 1 of this Schedule.

Part 2 ­ Application of amendments and saving of appointments

Item 14 ­ Definitions

25. Item 14 specifies that in this Part `commencement' means the commencement of
Schedule 5, `old Act' means the Act as in force immediately before that
commencement (the existing Act), and `new Act' means the Act as in force after that
commencement (the amended Act).

Item 15 ­ Application of amendments

26. Item 15 states that the amendments made by Schedule 5 will apply to proceedings
initiated under Part VII on or after the day on which that Schedule commences.

Item 16 ­ Saving of appointments

27. Paragraph 1 states that this item will apply if a court has made an order under
section 68L for the child to be separately represented and, immediately before
commencement, the proceedings in which the order was made have not been
concluded.

28. Paragraph 2 states that a `child representative' who was appointed under
section 68L of the current Act, or `old Act', is taken to be appointed as the
`independent children's lawyer' under section 68L of the amended Act, the `new
Act'. The purpose of this paragraph is to ensure that a separate representative
appointed under section 68L of the existing Act, will be deemed to be an independent
children's lawyer for the amended Act. A further order for the appointment of an
independent children's lawyer will not be required.

29. Paragraph 3 states that an order under section 68L of the old Act for separate
representation of the child is taken to be an order under section 68L of the new Act
for independent representation of the child's interests. This will ensure that any
recent orders made by the court appointing a separate representative will apply. A
further order for an independent children's lawyer will not be required.




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SCHEDULE 6 ­ FAMILY VIOLENCE


30. Schedule 6 repeals and replaces the existing Division 11. This Division deals
with the relationship between orders made under the Family Law Act 1975 (the Act)
that provide for a child to spend time with a person, and family violence orders made
under a law of a State or Territory to protect a person from family violence.

31. The amendments seek to make Division 11 clearer, more concise and easier to
understand by the people who use and implement it, in particular, for State and
Territory Magistrates making family violence orders.

32. The amendments implement recommendations to simplify and improve the
operation of the provisions in Division 11, made by the Family Law Council in its
letter of advice to the Attorney-General dated 16 November 2004.

33. The amendments also remove references to the term `contact' from the Division
to ensure the Division's terminology is consistent with the new terminology
introduced in Schedule 8 of this Act.

Item 1 ­ Division 11 of Part VII

34. Item 1 repeals and replaces the existing Division 11. This Division deals with the
relationship between orders made under the Act that provide for a child to spend time
with a person, and family violence orders made under a law of a State or Territory to
protect a person from family violence.

Section 68N ­ Purposes of this Division

35. Section 68N clarifies the purposes of Division 11. The purposes are to:

       ·   resolve inconsistencies between State and Territory family violence orders and
           orders made under the Act that provide for a child to spend time with a person,
           and
       ·   achieve the objects and principles set out in section 60B. These principles
           include ensuring that a child benefits from a meaningful relationship with both
           parents and ensuring that the child is protected from harm.

36. Division 11 attempts to achieve these purposes in two ways. Firstly, where a
court exercising jurisdiction under the Act makes an order providing for a child to
spend time with a person and this order is inconsistent with an existing family
violence order, section 68P places obligations on the court to explain to the parties
affected (or arrange for someone else to explain to them), the effect and consequences
of the order and how it is to be complied with.




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37. Secondly, when an application for a family violence order is made in a State or
Territory court, Division 11 gives that court the power to amend an existing family
law order providing for a child to spend time with a person, if this is necessary to give
effect to the family violence order. Giving this power to State and Territory courts is
necessary to protect people, particularly children, where a family law order may
expose them to violence or risk of violence. It also ensures that this is done with
appropriate consideration of the objects and principles in Part VII of the Act.

Section 68P - Obligations of court making an order or granting an injunction under this Act
that is inconsistent with an existing family violence order

38. Section 68P sets out what a court exercising jurisdiction under the Act must do
when there is an existing State or Territory family violence order in place and the
court makes an order (or grants an injunction) that is inconsistent with it. This could
arise, for example, where the court exercising family law jurisdiction makes an order
that a child spend time with a person even though an earlier family violence order
might prevent this occurring.

39. Subsection 68P(1) sets out when the section applies. It provides that the section
applies if a court exercising family law jurisdiction makes certain orders or
injunctions and these orders or injunctions are inconsistent with an existing State and
Territory family violence order. The relevant orders and injunctions are described in
subparagraphs (1)(a)(i), (ii) and (iii) of section 68P. They include a parenting order
that provides for a child to spend time with a person or authorises a person to spend
time with a child, a recovery order (as defined in section 67Q), or an injunction under
sections 68B or 114. Section 68B sets out the types of injunctions a court can grant
for the welfare of a child. Section 114 sets out the types of injunctions a court can
grant in proceedings between parties to a marriage in circumstances arising out of the
marital relationship, which include an injunction for the personal protection of one of
the parties.

40. By listing the orders to which section 68R applies, subsection 68P(1) removes the
need for the existing definition of `section 68P contact order'. This is consistent with
the changes in Schedule 5 which remove references to the terms `residence' and
`contact' from the Act. It will simplify the application of Division 11.

41. Subsection 68P(2) sets out what the court's obligations are when it makes an
order or injunction which is inconsistent with an existing family violence order. The
obligations only apply to the extent to which the order or injunction provides for the
child to spend time with a person or authorises a person to spend time with the child.
The court is required to:

     ·         state in the family law order or injunction that it is inconsistent with an
         existing State or Territory family violence order (paragraph (a))

     ·          give a detailed explanation of how the contact that the order provides
         for is to take place (paragraph (b)), and




                                          150
     ·         explain the order or injunction to the applicant and respondent, the
         person against whom the family violence order is directed (if not the
         applicant or respondent) and the person protected by the family violence
         order (if not the applicant or respondent) (paragraph (c)).

These provisions ensure that all people affected by the order are informed about it and
understand its implications.

42. The court is required to include in the explanation:

     ·         the purpose of the order or injunction

     ·         the obligations the order or injunction creates (including how the contact that
         it provides for is to take place)

     ·         the consequences if a person fails to comply with the order or injunction

     ·        its reasons for making an order or granting an injunction that is inconsistent
         with a family violence order, and

     ·        the circumstances in which a person may apply to vary or revoke the order or
         injunction (paragraph 68P(3)(d)).

43. The intention is to both ensure that the court has to consider the effect of making
an order that is inconsistent with an existing family violence order and explain to the
parties how the new order will work. This will ensure that all affected people are
made aware of the new order and that the order contains appropriate safeguards.

44. The court does not necessarily have to provide the explanation itself. It can
arrange for another person, such as a family consultant, to do so.

45. Subsection 68P(3) provides that where the court exercising family law
jurisdiction makes an order or injunction that is inconsistent with an existing family
violence order, it must give a copy of the order to each of the persons listed in
paragraphs (a) to (f). This ensures that all people affected by the order or involved in
the enforcement of the order have a copy of it and are aware of what has happened.
This should resolve confusion that may otherwise occur about the effect of the other
inconsistent orders. The court must provide the copies as soon as it is practicable and
no later than 14 days after making the order or granting the injunction.

46. Subsection 68P(4) provides that the validity of the order or injunction is not
affected by a failure to comply with the section. This will prevent technical defects
after the court has already considered the matter. This is appropriate given the high
cost of having a matter heard.




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Section 68Q - Relationship of order or injunction made under this Act with existing
inconsistent family violence order

47. Section 68Q is an important provision which clarifies the relationship between
family law orders which provide for a child to spend time with a person and State or
Territory family violence orders.

48. Subsection 68Q(1) provides that where an order which provides for a child to
spend time with a person is inconsistent with a State or Territory family violence
order, the order which provides for a child to spend time with a person prevails and
the family violence order is invalid to the extent of the inconsistency.

49. Subsection 68Q(2) provides that:

     ·    an applicant or respondent,

     ·   the person against whom the family violence order is directed, or

     ·   the person protected by the family violence order

may apply to the court for a declaration that the order or injunction is inconsistent
with the family violence order.

50. Under subsection 68Q(3), the court must hear and determine the application and
make such declarations as it considers appropriate. The making by the court of a
declaration would make it clear that a later family law order is meant to be
inconsistent with the earlier family violence order.

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

Power

51. Subsection 68R(1) gives a court of a State or Territory dealing with an
application for a family violence order, the power to revive, vary, discharge or
suspend family law orders, injunctions and arrangements that provide for a child to
spend time with a person. The orders, injunctions and arrangements are described in
paragraphs 68R(1)(a) to (d).

52. The court may revive, vary, discharge or suspend these orders, injunctions and
arrangements on its own initiative or on the application by any person. This provides
protection for children and their parents where a family law order may expose them to
violence or risk of violence.

Limits on power

53. Subsections 68R(3) and (4) set out the limits on the courts powers under this
section. Paragraph 68R(3)(a) provides that the court must not revive, vary, discharge
or suspend an order, injunction or arrangement (as set out in subsection 68R(1))


                                          152
unless it also makes or varies a family violence order in the proceedings (whether or
not by interim order).

54. Paragraph 68R(3)(b) provides that the court must not revive, vary, discharge or
suspend an order or injunction mentioned in paragraphs 68R(1)(a), (b) and (c) unless
the court has material before it that was not before the court that made the order or
injunction. The intention is to prevent parties circumventing family law orders by
applying to a State or Territory court where there is no new evidence of violence or
abuse.

55. Under subsection 68R(4), the court must not exercise its power under
subsection 68R(1) to discharge an order, injunction or arrangement in proceedings to
make an interim family violence order or an interim variation of a family violence
order. It would be inappropriate for the court to discharge a family law order,
injunction or arrangement on the basis of limited evidence available at an interim
hearing.

Relevant considerations

56. Subsection 68R(5) clarifies what a State or Territory court making a family
violence order should relevantly consider when exercising its power to revive, vary,
discharge or suspend a family law order, injunction or arrangement (as set out in
subsection 68R(1)).

57. Paragraph 68R(5)(a) provides that the court must have regard to the purposes of
the Division (as set out in section 68N).

58. Paragraph 68R(5)(b) provides that the court must also have regard to whether
contact with both parents is in the best interests of the child.

59. Paragraph 68R(5)(c) provides that before varying, discharging or suspending an
order or injunction (as set out in paragraphs 68R(1)(a),(b) and (c)) that was
inconsistent with an existing family violence order when it was made or granted, the
court must be satisfied that it is appropriate to do so because a person has been
exposed, or is likely to be exposed, to family violence as a result of the operation of
that order or injunction. This is to prevent orders or injunctions obtained under the
Family Law Act from being varied, discharged or suspended, unless there is evidence
that the order or injunction has exposed, or is likely to expose, a person to the risk of
family violence.

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

60. Subsection 68R(6) provides for a regulation making power for the registration of
court orders reviving, varying, discharging or suspending a family law order,
injunction or arrangement. Failure to comply with a registration requirement under
regulations that are made does not affect the validity of the court's decision.




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

61. Section 68S clarifies that some provisions of the Act and Rules may not apply
when a State or Territory court is exercising its power under section 68R to revive,
vary, discharge or suspend an order, injunction or arrangement under the Act.

62. Subsection 68S(1) sets out a list of provisions that do not apply.
Paragraph 68S(1)(f) contains a provision allowing for regulations to specify that other
provisions do not apply.

63. Paragaph 68S(2)(a) provides that if a State or Territory court is exercising its
power under section 68R in proceedings to make an interim family violence order (or
interim variation of a family violence order), the court has a discretion about whether
to apply paragraph 60CC(3)(a). Paragraph 60CC(3)(a) allows the court to take into
consideration any views expressed by the child when determining the child's best
interests. Paragaph 68S(2)(b) provides for a regulation making power for other
provisions of the Act or applicable Rules of Court to be specified not to apply in State
or Territory court proceedings of this kind.

64. Subsection 68S(3) provides a power for a court exercising its power under
section 68R to dispense with any otherwise applicable Rules of Court.

Section 68T - Special provisions relating to proceedings to make an interim (or interim
variation of) family violence order

65. Section 68T makes special provision for proceedings involving interim family
violence orders or interim variations of family violence orders. Subsection 68T(1)
provides that in such proceedings, if the court revives, varies or suspends an order,
injunction or arrangement under section 68R, that revival, variation or suspension
ceases to have effect at the time the interim order stops being in force, or 21 days after
the interim order was made (whichever is earlier). No appeal lies in relation to the
revival, variation or suspension (subsection 68T(2)).

66. The intention of this provision is to allow a State or Territory court making
interim family violence orders to revive, vary or suspend the operation of family law
orders, such as parenting orders about the time a child is to spend with a person, for a
period of three weeks. This three week period will provide an opportunity for an
application to be made to amend the family law orders. This provision balances the
competing interests of providing immediate protection from violence and ensuring
that any changes to family law orders are dealt with in a short period and with due
process.

Part 2 ­ Application of amendments and savings

Item 2 ­ Definitions

67. This item sets out the definitions of terms used in Part 2, which deals with the
application of the provisions in the Schedule and saving the regulations made under
the existing Act.


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155
Item 3 ­ Application of amendments

68. This item clarifies that the amendments made by Part 1 apply to orders made after
the provisions of the Schedule commence, whether or not the application for the order
was made before or after that time. This is appropriate as these provisions do not
change the substance of this Division by redrafting them in a clearer and more
accessible way.

Item 4 ­ Saving of regulations

69. This item provides for the saving of regulations made under the existing Act. It
provides that even where a provision of the existing Act (specified in the table) has
been repealed, regulations that were made for the purposes of that provision, and were
in force immediately before the commencement of this Schedule, continue to have
effect as if they had been made for the purposes of the corresponding provision of the
new Act (also specified in the table).




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SCHEDULE 7 ­ JURISDICTION OF COURTS


70. Schedule 7 repeals the property limit provision contained in the the Act that
prevents the Federal Magistrates Court (FMC) from exercising jurisdiction in
property proceedings where the value of the property exceeds $700,000 unless both
parties consent.

71. The FMC currently shares jurisdiction for family law matters with the Family
Court of Australia (FCA). The FMC was established in order to deal with simpler
and less complex matters.

72. As part of the package of reforms to the family law system, the FCA and the
FMC are developing a combined registry for family law matters. The aim of the
combined registry is to make the court system easier to navigate by providing a single
point of entry to the family court system. The development of a combined registry
addresses issues raised in the Every picture tells a story report and the Australian
National Audit Office report on client service in the FCA and FMC.

73. An important component of the combined registry is the ability to refer matters to
the most appropriate court (through the use of transfer mechanisms such as those set
out in section 33B of the Act and section 39 of the Federal Magistrates Act 1999).
The $700,000 property limit creates unnecessary rigidity in the system. These
amendments will enable property matters to be more effectively channelled to the
most appropriate court and provide opportunities for the courts to maximise their use
of resources.

Item 1: Section 45A

74. This item repeals Section 45A. Currently, section 45A provides that the FMC
must transfer proceedings to the FCA if the property value exceeds $300,000, or if
another amount is specified in the regulations ­ that other amount. Pursuant to sub-
regulation 12AC(2) of the Family Law Regulations 1984 the amount of $700,000 is
specified for the purposes of Section 45A of the Act.

75. The FMC is only required to transfer proceedings where the property value
exceeds $700,000 to the FCA if the respondent seeks a different order to that of the
applicant and both parties do not consent to the FMC hearing and determining the
proceedings.

76. By repealing section 45A the FMC will be able to exercise jurisdiction for all
property proceedings regardless of the value of the property or the consent of the
parties.

Item 2: Application of Amendment

77. This item provides that the amendment made by item 1 applies to proceedings
instituted before or after the commencement of that item. This provides the FCA with
the flexibility to transfer pending property proceedings to the FMC where the FMC is
the more appropriate court to deal with the matter.



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SCHEDULE 8 ­ REMOVAL OF REFERENCES TO RESIDENCE AND
CONTACT


78. Schedule 8 changes the terminology of the Act to remove references to the terms
`residence', `contact' and `specific issues orders'. Changes to the Act in 1995
adopted the terms `residence' and `contact' instead of `custody' and `access' in order
to eliminate any sense of ownership of children. However, the intended change of
culture has not been achieved and the FCAC Report recommended that more family
friendly terms such as `parenting time' be used.

79. In the majority of cases the amendments replace references to `residence' with
`lives with' and references to `contact' with `spends time with' and `communicates
with'. The amendments also remove the current categories of residence, contact and
specific issues orders from parenting orders and refer simply to parenting orders.
Child maintenance orders are retained as a separate category of parenting orders.
This is due to the direct link between child maintenance orders and orders made
pursuant to the child support scheme.

80. The changes will focus the court and the parties on parenting as the central issue.
In particular, this will emphasise the need for parents to think more broadly about
what parenting means and the impact of the proceedings upon the child.

81. These amendments substantially implement recommendation 4 of the FCAC
Report. They require consequential amendments to the terminology that is used in the
Australian Citizenship Act 1948, the Australian Citizenship Act 2005, the Australian
Passports Act 2005, the Child Support (Assessment) Act 1989 and the Migration Act
1958.

Part 1 ­ Amendments

Australian Citizenship Act 1948

Item 1 ­ Paragraphs 5(2)(b) and (c)

82. Item 1 amends the definition of `responsible parent' in section 5 of the Australian
Citizenship Act 1948 to remove the references to residence orders and specific issues
orders. These references are replaced with references to parenting orders under which
a child is to live with a person and parenting orders under which a person has parental
responsibility for a child's long-term or day-to-day care, welfare and development.
This amendment ensures that the more generic description of `parenting orders'
operates.




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Australian Citizenship Act 2005

Item 2 ­ Paragraphs 6(1)(b) and (c)

83. Item 2 amends the definition of `responsible parent' in section 6 of the Australian
Citizenship Act 2005 to remove the references to residence orders and specific issues
orders. These references are replaced with references to parenting orders under which
a child is to live with a person and parenting orders under which a person has parental
responsibility for a child's long-term or day-to-day care, welfare and development.
This amendment ensures that the more generic description of `parenting orders'
operates.

Australian Passports Act 2005

Item 3 ­ Paragraphs 11(5)(b) and (c)

84. Item 3 repeals paragraphs 11(5)(b) and (c) of the Australian Passports Act 2005
which define having parental responsibility for a child by reference to a `residence
order', `contact order', or `specific issues order'. These references are replaced by
references to parenting orders under which a child lives or spends time with a person
and parenting orders under which a person has responsibility for a child's long-term
or day-to-day care, welfare and development. This amendment ensures that the more
generic description of `parenting orders' operates.

Item 4 ­ Subsection 11(6)

85. Item 4 repeals subsection 11(6) of the Australian Passports Act 2005 which
defines `contact order', `residence order' and `specific issues order' by reference to
the Act. This terminology is no longer used in the Act.

Child Support (Assessment) Act 1989

86. These provisions change the terminology in the Child Support (Assessment) Act
1989 (Child Support Act) to remove references to the term `contact' as a
consequence of the removal of this term from the Act. `Contact' is being replaced by
terms such as `care' or `spending time with', depending on the context. These
changes are technical in nature and do not change the substance of the amended
provisions.

Item 5 ­ Section 5

87. Item 5 introduces the term `major care' in section 5 the Child Support Act, which
is the definition section of that Act. The term replaces the term `major contact' which
is repealed by item 6. This amendment updates the terminology to remove the
reference to contact.

Item 6 ­ Section 5 (definition of major contact)

88. Item 6 repeals the definition of `major contact' in section 5 of the Child Support
Act, which is the definition section of that Act. The term is replaced by `major care'


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which is inserted by item 5. This amendment updates the terminology to remove the
reference to contact.

Item 7 ­ Section 5 (subparagraph (a)(ii) of the definition of relevant dependent
         child)

89. Item 7 replaces the term `major contact' in subparagraph (a)(ii) of the definition
of `relevant dependent child' in section 5 of the Child Support Act, which is the
definition section of that Act, with the term `major care' which is inserted by item 5.
This amendment updates the terminology to remove the reference to contact.

Item 8 ­ Section 5

90. Item 8 introduces the term `substantial care' in section 5 of the Child Support
Act, which is the definition section of that Act. The term replaces the term
`substantial contact' which is repealed by item 9. This amendment updates the
terminology to remove the reference to contact.

Item 9 ­ Section 5 (definition of substantial contact)

91. Item 9 repeals the definition of `substantial contact' in section 5 of the Child
Support Act, which is the definition section of that Act. The term is replaced by
`substantial care' inserted by item 8. This amendment updates the terminology to
remove the reference to contact.

Item 10 ­ Paragraph 7B(1)(b)

92. Item 10 changes the phrase `contact with' to `care of' in paragraph 7B(1)(b) of
the Child Support Act. Section 7B of the Child Support Act sets out the meaning of
eligible carer. This amendment updates the terminology to remove the reference to
contact.

Item 11 ­ Paragraph 7B(1)(d)

93. Item 11 changes the phrase `contact with' to `care of' in paragraph 7B(1)(d) of
the Child Support Act. Section 7B of the Child Support Act sets out the meaning of
eligible carer. This amendment updates the terminology to remove the reference to
contact.

Item 12 ­ Paragraph 7B(2)(a)

94. Item 12 changes the phrase `provides care for a child, shares care of a child or has
contact with' to `cares for' in paragraph 7B(2)(a) of the Child Support Act. Section
7B of the Child Support Act sets out the meaning of eligible carer. This amendment
updates the terminology to remove the reference to contact.

Item 13 ­ Paragraph 7B(2)(c)

95. Item 13 changes the phrase `providing or sharing such care, or having such
contact' to `caring for the child' in paragraph 7B(2)(c) of the Child Support Act.



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Section 7B of the Child Support Act sets out the meaning of eligible carer. This
amendment updates the terminology to remove the reference to contact.

Item 14 ­ Subsection 7B(2)

96. Item 14 changes the phrase `provide care for, share such care or having such
contact' to `care for the child' in subsection 7B(2). Section 7B of the Child Support
Act sets out the meaning of eligible carer. This amendment updates the terminology
to remove the reference to contact.

Item 15 ­ Subsection 7B(3)

97. Item 15 changes the phrase `provide care for, share care of or have contact with'
to `care for' in subsection 7B(3). Section 7B of the Child Support Act sets out the
meaning of eligible carer. This amendment updates the terminology to remove the
reference to contact.

Item 16 ­ Subparagraph 8(3)(b)(ii)

98. Item 16 changes the phrase `contact with' to `care of' in subparagraph 8(3)(b)(ii)
of the Child Support Act. Section 8 defines major and substantial care of a child.
This amendment updates the terminology to remove the reference to contact.

Item 17 ­ Paragraph 8(3)(c)

99. Item 17 changes the phrase `contact with' to `care of' in paragraph 8(3)(c) of the
Child Support Act. Section 8 defines major and substantial care of a child. This
amendment updates the terminology to remove the reference to contact.

Item 18 ­ Paragraph 8(3)(d)

100. Item 18 changes the phrase `contact with' to `care of' in paragraph 8(3)(d) of
the Child Support Act. Section 8 defines major and substantial care of a child. This
amendment updates the terminology to remove the reference to contact.

Item 19 ­ Paragraph 8A(1)(a)

101. Item 19 changes the phrase `the contact between a child and' to `the time a child
is to spend with' in paragraph 8A(1)(a) of the Child Support Act. Section 8A
modifies the meaning of care of a child where there has been a contravention of a
court order. This amendment updates the terminology to remove the reference to
contact.

Item 20 ­ Paragraph 8A(1)(d)

102. Item 20 changes the wording of paragraph 8A(1)(d) of the Child Support Act.
Section 8A modifies the meaning of care of a child where there has been a
contravention of a court order. This amendment is for clarification only and does not
change the substance of the amended provision.




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Item 21 ­ Paragraphs 8A(2)(a) and (b)

103. Item 21 changes the wording of paragraphs 8A(2)(a) and (b) of the Child
Support Act to be consistent with the changes to paragraph 8A(1)(d). Section 8A
modifies the meaning of care of a child where there has been a contravention of a
court order. This amendment is for clarification only and does not change the
substance of the amended provision.

Item 22 ­ Subsection 8A(4)

104. Item 22 changes the phrase `contact with' to `care of' in subsection 8A(4) of the
Child Support Act. Section 8A modifies the meaning of care of a child where there
has been a contravention of a court order. This amendment updates the terminology
to remove the reference to contact.

Item 23 ­ Subsection 8A(5)

105. Item 23 changes the phrase `contact with' to `care of' in subsection 8A(5) of the
Child Support Act. Section 8A modifies the meaning of care of a child where there
has been a contravention of a court order. This amendment updates the terminology
to remove the reference to contact.

Item 24 ­ Subsection 8A(6)

106. Item 24 changes the phrase `contact with' to `care of' in subsection 8A(6) of the
Child Support Act. Section 8A modifies the meaning of care of a child where there
has been a contravention of a court order. This amendment updates the terminology
to remove the reference to contact.

Item 25 ­ Paragraph 48(1)(da)

107. Item 25 changes the phrase `with whom the parent has substantial contact' to `of
whom the parent has substantial care' in paragraph 48(1)(da) of the Child Support
Act. Section 48 sets out how the basic formula is applied where both parents share
the care of their child or children. This amendment updates the terminology to
remove the reference to contact.

Item 26 ­ Paragraph 48(1)(e)

108. Item 26 removes the terms `major contact' and `substantial contact' and replaces
them with `major care' and `substantial care' in paragraph 48(1)(e) of the Child
Support Act. Section 48 sets out how the basic formula is applied where both parents
share the care of their child or children. This amendment updates the terminology to
remove the reference to contact.

Item 27 ­ Paragraph 54(1)(b) (definition of number of children in carer's care)

109. Item 27 removes the terms `major contact' and `substantial contact' and replaces
them with `major care' and `substantial care' in paragraph 54(1)(b) of the Child



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Support Act. Section 54 sets out how the basic formula is applied where a parent is
liable in relation to two or more carers. This amendment updates the terminology to
remove the reference to contact.

Item 28 ­ Section 54 (example 2)

110. Item 28 changes the phrase `substantial contact' to `substantial care' in example
2 in section 54 of the Child Support Act. Section 54 sets out how the basic formula is
applied where a parent is liable in relation to two or more carers. This amendment
updates the terminology to remove the reference to contact.

Item 29 ­ Paragraph 54A(1)(a)

111. Item 29 removes the phrase `and contact' in paragraph 54A(1)(a) of the Child
Support Act. Section 54A describes the cases in which Subdivision H of that Act
applies. This amendment updates the terminology to remove the reference to contact.

Item 30 ­ Subparagraph 54A(1)(b)(ii)

112. Item 30 changes the phrase `contact with' to `care of' in
subparagraph 54A(1)(b)(ii) of the Child Support Act. Section 54A describes the
cases in which Subdivision H of that Act applies. This amendment updates the
terminology to remove the reference to contact.
Item 31 ­ Paragraph 54B(1)(e)

113. Item 31 changes the phrase `with whom the parent has substantial contact' to `of
whom the parent has substantial care' in paragraph 54B(1)(e) of the Child Support
Act. Section 54B of the Child Support Act sets out how the basic formula is applied
where there has been a contravention of a court order. This amendment updates the
terminology to remove the reference to contact.

Item 32 ­ Subparagraph 54B(1)(f)(i)

114. Item 32 changes the phrase `with whom the carer has major contact' to `of
whom the carer has major care' in subparagraph 54B(1)(f)(i) of the Child Support
Act. Section 54B sets out how the basic formula is applied where there has been a
contravention of a court order. This amendment updates the terminology to remove
the reference to contact.

Item 33 ­ Subparagraph 54B(1)(f)(ii)

115. Item 33 changes the phrase `with whom the carer has substantial contact' to `of
whom the carer has substantial care' in subparagraph 54B(1)(f)(ii) of the Child
Support Act. Section 54B sets out how the basic formula is applied where there has
been a contravention of a court order. This amendment updates the terminology to
remove the reference to contact.




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Item 34 ­ Paragraph 98C(2)(b)

116. Item 34 replaces the reference in paragraph 98C(2)(b) to `sub-sub-
paragraph 117(2)(b)(i)(C)' with a reference to `subparagraph 117(2)(b)(ib)'.
Section 98C sets out the matters as to which a Registrar must be satisfied before
making determination under the Child Support Act. This is a consequential
amendment due to the changes introduced by item 35 of this Schedule, below.

Item 35 ­ Subparagraph 117(2)(a)(iv)

117. Item 35 repeals and replaces subparagraph 117(2)(a)(iv) of the Child Support
Act which provides that a court may depart from the formula assessment prescribed in
the Act, where a parent has high costs enabling the parent to have contact with a
child. This item substitutes the word `contact' with `care for'. This amendment
updates the terminology to remove the reference to contact.

118. The costs of a parent caring for the child are intended to be included in the
court's consideration. This can include travel, telephone costs and accommodating
the child during periods of care. These reasons are not intended to be limited and
could possibly include legal costs of seeking orders to enable a parent to maintain
their relationship with the child. However, this is not intended to apply to costs
incurred when seeking an order as to where the child is to live.

Item 36 ­ Subparagraph 117(2)(b)(i)

119. Item 36 repeals subparagraph 117(2)(b)(i) of the Child Support Act which
provides that a court may depart from the formula assessment prescribed in the Act,
where high costs are involved in enabling a parent to have contact with a child. This
item substitutes the word `contact' with `care for'. This amendment updates the
terminology to remove the reference to contact.

120. The possible `high costs' of caring for a child are described in item 35 of this
Schedule, above.

Item 37 ­ Subsection 117(3)

121. Item 37 amends subsection 117(3) of the Child Support Act which sets out when
`high costs' of contact will be established. The phrase `have contact with' is changed
to `care for'. This amendment updates the terminology to remove the reference to
contact.

Item 38 ­ Subsection 117(3)

122. Item 38 replaces the reference in subsection 117(3) to `sub-sub-
paragraph 117(2)(b)(i)(A)' with a reference to `subparagraph 117(2)(b)(i)'. This is a
consequential amendment due to the changes introduced by item 35 of this Schedule,
above.




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Item 39 ­ Subsections 117A(3A) and (3B)

123. Item 39 replaces the reference in subsection 117(3) to `sub-sub-
paragraph 117(2)(b)(i)(C)' with a reference to `subparagraph 117(2)(b)(ib)'. This is a
consequential amendment due to the changes introduced by item 35 of this Schedule,
above.

Family Law Act 1975

Item 40 ­ Subsection 4(1) (definition of contact order)

124. Item 40 repeals the definition of `contact order' in section 4, which is the
definition section of the Act, to ensure the more generic description of parenting
orders operates.
Item 41 ­ Subsection 4(1) (definition of has)

125. Item 41 repeals the definition of `has' in section 4, which is the definition
section of the Act, which refers to a person who has a residence, contact or specific
issues order. This terminology is no longer relevant.

Item 42 ­ Subsection 4(1) (definition of made in favour)

126. Item 42 repeals and replaces the definition of `made in favour' in section 4,
which is the definition section of the Act. The new definition changes the reference
from `a residence, contact and specific issues order' to `a parenting order.' This
ensures the more generic description of parenting orders operates.

Item ­ 43 ­ Subsection 4(1) (definition of overseas child order)

127. Item 43 moves to the definition provision in subsection 4(1) the definition of
`overseas child order', which is currently in Subdivision C of Division 13 of Part VII.
Subdivision C deals with the registration of overseas orders providing for children.
The definition has been amended to include an order that provides for a person to
spend time with a child. This change is consequential to the removal of the references
to residence and contact from the Act.

Item 44 ­ Subsection 4(1) (definition of residence order)

128. Item 44 repeals the definition of `residence order' in section 4, which is the
definition section of the Act, to ensure the more generic description of parenting
orders operates.

Item 45 ­ Subsection 4(1) (definition of specific issues order)

129. Item 45 repeals the definition of `specific issues order' in section 4, which is the
definitions section of the Act, to ensure the more generic description of parenting
orders operates.




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Item 46 ­ Subsection 4(1)

130. Item 46 moves to the definition provision in subsection 4(1) the definition of
`State child order', which is currently in Subdivision B of Division 13 of Part VII.
Subdivision B deals with the registration of State and Territory orders providing for
children. The definition has been amended to include an order that provides for a
person to spend time with a child. This change is consequential to the removal of the
references to residence and contact from the Act.

Item 47 ­ Subsection 4(1)

131. Item 47 inserts in the definition provision in subsection 4(1) a new definition of
`Subdivision C parenting order'. Subdivision C of Division 13 deals with the
registration of overseas orders. A `Subdivision C parenting order' is defined to
include a parenting order to the extent that it deals with whom a child lives with,
spends time with or who is to be responsible for a child's day to day care, welfare and
development. This new definition replaces the definition of `care order' in the
existing section 70F which is repealed by item 60 of Schedule 9. The amendment
ensures that the more generic description of parenting orders operates.

Item 48 ­ Subsection 26B(1A)

132. Item 48 amends the definition of an `excluded child order' in section 26B(1A)
to remove references to residence, contact and specific issues orders. This ensures the
more generic description of parenting orders operates.

133. The power to make excluded child orders cannot be delegated to judicial
registrars under section 26B(1) which is the section that sets out the powers that may
be delegated to judicial registrars.

Item 49 ­ Subsection 37A(2A)

134. Item 49 amends the definition of `excluded child orders' in section 37A(2A) to
remove references to residence, contact and specific issues orders. This ensures the
more generic description of parenting orders operates.

135. The power to make excluded child orders cannot be delegated to registrars
under section 37, which is the section that deals with the delegation of the powers of
the Court to registrars.

Item 50 ­ Section 60C (table item 6)

136. Item 50 adds to the description of Division 6 in the table in section 60C of the
Act. This table gives an outline of Part VII of the Act (Children). A reference to
attending family dispute resolution is added to the description of what Division 6 of
the Act does. The addition clarifies that the division deals with the applying for and
making of parenting orders, (other than child maintenance orders) after parties have
attended family dispute resolution where this is necessary.




                                          166
137. New section 60I inserted by Schedule 1 provides for compulsory attendance at
family dispute resolution in a range of circumstances, prior to lodging an application
with the court. This is a key change to encourage a culture of agreement making and
avoidance of an adversarial court system.

Item 51 ­ Section 60C (table item 6)

138. Item 51 removes the reference to residence, contact and specific issues orders in
item 6 of the table in section 60C of the Act. This table gives an outline of Part VII of
the Act (Children). The change is to reflect the generic description of parenting
orders that now operates in Part VII.
Item 52 ­ Section 60C (table item 11)

139. Item 52 removes the reference to `contact orders etc.' in item 11 of the table in
section 60C of the Act. This table gives an outline of Part VII of the Act (Children).
The term `contact orders etc.' is replaced with `parenting orders'. This is to ensure the
more generic description of parenting orders operates.

Item 53 ­ Section 60C (table item 13A)

140. Item 53 removes the reference to `for contact foregone' in item 13 of the table in
section 60C of the Act. This table gives an outline of Part VII of the Act (Children).
Item 13 describes Division 13A which relates to enforcement of orders affecting
children. The reference to `for contact foregone' is replaced with the more general
description of who a child did not spend time with or did not live with. This
amendment updates the terminology to remove the reference to contact.

Item 54 ­ Subsection 63C(4)

141. Item 54 repeals and replaces subsection 63C(4) which is the subsection that
explains what constitutes `a child welfare provision' in a parenting plan. It clarifies
that provisions of a parenting plan that deal with matters other than the maintenance
of a child are `child welfare provisions'. The new definition avoids using
terminology such as `contact'. The definition of `a child welfare provision' is
relevant to section 63F which applies to a registered parenting plan that contains child
welfare provisions.

142. Registration of parenting plans was removed by the Family Law Amendment
Act 2003. These provisions therefore only relate to existing registered parenting
plans.

Item 55 ­ Subsection 63C(5)

143. Item 55 is a consequential amendment to subsection 63C(5) which is the
subsection that explains what constitutes a child maintenance provision in a parenting
plan. Subsection 63C(5) refers to subsection 63C(2) which sets out the issues a
parenting plan may deal with. A new subsection 63C(2) is inserted in item 13 of
Schedule 1. The new subsection 63C(2) lists additional factors that can be dealt with
in a parenting plan. The reference to a parenting plan dealing with maintenance of a




                                          167
child now appears in paragraph 63C(2)(f), not paragraph 63C(5)(c). Item 55
addresses this.

Item 56 ­ Subsection 63F(3)

144. Item 56 repeals and replaces the existing subsection 63F(3) which describes the
effect of child welfare provisions in registered parenting plans. It does this to remove
the current references to `residence order', `contact order' and `specific issues order'.
The section now provides that provisions relating to child welfare, which are defined
in subsection 63C(4), will operate as if they were provisions of a parenting order.

145. Registration of parenting plans was removed by the Family Law Amendment
Act 2003. These provisions therefore only relate to existing registered parenting
plans.

Item 57 ­ Paragraph 65A(b)

146. Item 57 repeals and replaces the existing section 65A which is the section that
describes what Division 6 of Part VII (Children) of the Act deals with. The
amendment removes the references to residence, contact and specific issues orders
from paragraph 65A(b). The new paragraph provides that Division 6 deals with the
general obligations created by parenting orders other than child maintenance orders.
This ensures that the more generic description of parenting orders operates.

Item 58 ­ Subsection 65G(1)

147. Item 58 repeals and replaces subsection 65G(1) which sets out when
section 65G applies. Section 65G is the section that sets out the special conditions
that apply when the court proposes to make a residence or specific issues order by
consent, in favour of a non parent. New subsection 65G(1) changes the terminology
to refer to parenting orders that deal with whom a child should live with (rather than
residence orders). New subsection 65G(1A) changes the terminology to refer to
parenting orders that deal with the allocation of parental responsibility or a
component of parental responsibility for a child (rather than specific issues orders).

148. New subsections 65G(1) and 65G(1A) also include a reference to grandparents
and other relatives such that the conditions set out in subsection 65G(2) do not apply
where a court proposes to order that a child live with a grandparent or other relative
or where a grandparent or other relative is allocated parental responsibility or a
component of parental responsibility for a child. This change is consistent with the
amendments to recognise the need to consider the benefit to the child of greater
involvement of extended family members.

Item 59 ­ Paragraph 65K(1)(a)

149. Item 59 repeals and replaces the existing paragraph 65K(1)(a) which deals with
what happens when a parenting order that includes a residence order, does not make
provision in relation to the death of a parent with whom the child lives. The new
paragraph 65(K)(1)(a) replaces the reference to residence orders with a reference to a




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parenting order that provides that the child is to live with one of the parents. This
ensures that the more generic description of parenting orders operates.

Item 60 ­ Subsection 65K(3)

150. Item 60 repeals and replaces the existing subsection 65K(3) which provides that
a surviving parent can apply for a residence order in relation to a child where the
existing residence order does not make provision in relation to the death of a parent
with whom the child lives. The new subsection 65K(3) removes the terminology of
residence and replaces it with a reference to a parenting order that deals with whom
the child is to live. This ensures that the more generic description of parenting orders
operates.
Item 61 ­ Subdivision C of Division 6 of Part VII (heading)

151. Item 61 repeals and replaces the heading for Subdivision C of Division 6 of
Part VII of the Act (Children). The new heading refers to the general obligations
created by certain parenting orders. This removes the reference to residence, contact
and specific issues orders and ensures that the more generic description of parenting
orders operates.

Item 62 ­ Subsection 65M(1)

152. Item 62 repeals and replaces the existing subsection 65M(1) which deals with
the general obligations created by a residence order and replaces it with a new
subsection that refers to the general obligation created by a parenting order to the
extent that it deals with whom the child is to live. This ensures that the more generic
description of parenting orders operates.

Item 63 ­ Section 65N and 65P

153. Item 63 repeals and replaces the existing section 65N which sets out the general
obligations created by a contact order. New section 65N applies to a parenting order
to the extent that the order deals with whom the child is to spend time. This removes
the terminology of `contact' and ensures that the more generic description of
parenting orders operates. Under new section 65N a person must not hinder or
prevent a person spending time with the child in accordance with the parenting order,
or interfere with a person and the child benefiting from spending time with each other
under the order.

154. Item 63 also inserts a new section 65NA which applies to a parenting order to
the extent that the order deals with whom a child communicates. This section
provides that a person cannot hinder or prevent a person or child from communicating
with each other in accordance with a parenting order or interfere with the
communication that a person and the child are supposed to have with each other under
the order. This new section is necessary to ensure that the Act sets out general
obligations to cover both elements of what were previously contact orders. That is,
orders relating to time spent with a child and orders relating to who the child
communicates with.




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155. Item 63 also repeals and replaces the existing section 65P which sets out the
general obligations created by specific issues orders that confer responsibility for a
child's care, welfare and development. New section 65P applies to parenting orders
to the extent to which the order allocates parental responsibility. This removes the
terminology of `specific issues orders' and ensures that the more generic description
of parenting orders operates. Under new section 65P, a person must not hinder a
person who has been allocated parental responsibility under an order in discharging
that responsibility.

Item 64 ­ Paragraphs 65Q(1)(a) and (b)

156. Item 64 repeals and replaces paragraphs (1)(a) and (b) in section 65Q. This
section sets out when the court may issue a warrant for arrest of an alleged offender
who has prevented or hindered the carrying out of a parenting order.

157. Existing paragraph 65Q(1)(a) provides that the section applies if a residence
order or a contact order is in force in relation to a child. New paragraph 65Q(1)(a)
replaces the references to residence and contact orders with references to orders about
whom the child is to live with, spend time with or communicate with. This ensures
that the more generic description of parenting orders operates.

158. Existing paragraph 65Q(1)(b) provides that the section applies if the court is
satisfied that there are reasonable grounds for believing that a person has contravened
sections 65M or 65N which set out the general obligations created by parenting orders
that deal with whom a child spends time with, and parenting orders that allocate
parental responsibility. New paragraph 65Q(1)(b) is amended to include a reference
to new section 65NA inserted by item 63 of this Schedule above which set out the
general obligations created by a parenting order that deals with whom a child
communicates.

Item 65 ­ Subsection 65X(1)

159. Item 65 repeals the existing definition of a care order at subsection 65X(1) in
Subdivision E of Division 6 of Part VII which is the subdivision which relates to the
obligations under parenting orders relating to taking or sending children from
Australia.

160. The definition is replaced with a definition of `a parenting order to which the
Subdivision applies'. The definition includes parenting orders about whom a child is
to live, spend time or communicate with and parenting orders that provide for a
person to have parental responsibility for a child. This amendment ensures that the
more generic description of parenting orders operates.

Item 66 ­ Subsection 65Y(1)

161. Item 66 amends subsection 65Y(1) which imposes an obligation on a party, or a
person acting on behalf of a party, not to take a child out of Australia where a
residence, contact or care order is in force in relation to a child. The amendment
replaces the reference to residence, contact and care orders with a reference to the
new definition of `a parenting order to which the Subdivision applies' inserted by



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item 65 of this Schedule. This amendment ensures that the more generic description
of parenting orders operates.

Item 67 ­ Paragraph 65Y(2)(a)

162. Item 67 amends subsection 65Y(2)(a) which provides that there is no
prohibition against taking or sending a child from Australia to outside of Australia, if
it is consented to in writing. The amendment replaces the reference to `the Part VII
order' with the new definition of `a parenting order to which this Subdivision applies'
as used in subsection 65Y(1). This amendment ensures that the more generic
description of parenting orders operates.

Item 68 ­ Paragraph 65Y(2)(b)

163. Item 68 amends paragraph 65Y(2)(b) which provides that there is no prohibition
against taking or sending a child from Australia to outside of Australia, if it is done in
accordance with an order of a court made under this part or under a law of a State or
Territory. The amendment replaces the reference `the Part VII order' with the new
definition of `a parenting order to which this Subdivision applies' as used in
subsection 65Y(1). This amendment ensures that the more generic description of
parenting orders operates.

Item 69 ­ Subsection 65Z(1)

164. Item 69 amends the terminology in subsection 65Z(1). This subsection prohibits
the taking or sending of a child from Australia where proceedings for the making of `a
residence order, a contact order or a care order' are pending, unless an exception in
subsection 65Z(2) applies. Subsection 65Z(1) is amended to replace the reference to
`a residence order, a contact order or a care order' with the new definition of `a
parenting order to which this Subdivision applies' inserted by item 65 of this
Schedule. This amendment ensures that the more generic description of parenting
orders operates.

Item 70 ­ Paragraph 65ZA(1)(a)

165. Item 70 repeals and replaces the existing paragraph 65ZA(1)(a). Section 65ZA
imposes obligations on owners etc, of aircraft and vessels in relation to taking or
sending a child from Australia, when a residence, contact or care order is in place.
New paragraph 65ZA(1)(a) replaces the reference to `a residence order, a contact
order or a care order' with the new definition of `a parenting order to which this
Subdivision applies' inserted by item 65 of this Schedule. This amendment ensures
that the more generic description of parenting orders operates.

Item 71 ­ Paragraph 65ZA(1)(b)

166. Item 71 amends paragraph 65ZA(1)(b). Section 65ZA imposes obligations on
owners etc, of aircraft and vessels in relation to taking or sending a child from
Australia, when a residence, contact or care order is in place. The amendment
replaces the reference to `Part VII' with the new definition of `parenting order to




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which the Subdivision applies' inserted by item 65 of this Schedule. This amendment
ensures that the more generic description of parenting orders operates.

Item 72 ­ Subsections 65ZA(3) and (4)

167. Item 72 amends paragraphs 65ZA(3) and (4). Section 65ZA imposes
obligations on owners etc, of aircraft and vessels in relation to taking or sending a
child from Australia, when a residence, contact or care order is in place. The
amendment replaces the reference to `Part VII' with the new definition of `parenting
order to which the Subdivision applies' inserted by item 65 of this Schedule. This
amendment ensures that the more generic description of parenting orders operates.

Item 73 ­ Paragraph 65ZB(1)(a)

168. Item 73 amends paragraph 65ZB (1)(a). Section 65ZB imposes obligations on
owners etc, of aircraft and vessels in relation to taking or sending a child from
Australia, when a residence, contact or care order is pending. The amendment
substitutes the reference to `a residence, contact or care order' with the new definition
of a `parenting order to which the Subdivision applies' inserted by item 65 of this
Schedule. This amendment ensures that the more generic description of parenting
orders operates.

Item 74 ­ Paragraphs 67K(1)(a) to (c)

169. Item 74 repeals and replaces paragraphs 67K(1)(a) to (c). Section 67K sets out
who may apply for a location order. The amendment replaces the references to
residence, contact and specific issues orders in paragraphs (a) to (c) with references to
parenting orders about whom a child is to live, spend time, or communicate with, and
parenting orders about parental responsibility or a component of parental
responsibility. This amendment ensures that the more generic description of
parenting orders operates.

Item 75 ­ Subparagraphs 67Q(a)(ii) and (iii)

170. Item 75 repeals and replaces subparagraphs 67Q(a)(ii) and (iii). Section 67Q
sets out the meaning of a recovery order which includes orders about to whom the
court may order the return of a child. The existing subparagraphs refer to residence,
contact and specific issues orders. The amendment replaces these references with
references to parenting orders about whom a child is to live, spend time, or
communicate with and parenting orders about parental responsibility or components
of parental responsibility. This amendment ensures that the more generic description
of parenting orders operates.


Item 76 ­ Subparagraphs 67Q(d)(ii) to (iv)

171. Item 76 repeals subparagraphs 67Q(d)(ii) to (iv) and replaces them with new
subparagraphs 67Q(d)(ii) and (iii). Section 67Q sets out the meaning of a recovery
order which includes orders requiring a returned child to be delivered to particular
people. The existing subparagraphs refer to residence, contact and specific issues


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orders. The amendment replaces these references with references to parenting orders
about whom a child is to live, spend time, or communicate with and parenting orders
about parental responsibility or components of parental responsibility. This
amendment ensures that the more generic description of parenting orders operates.

Item 77 ­ Paragraphs 67T(a) to (c)

172. Item 77 repeals and replaces paragraphs 67T(a) to (c) which set out who may
apply for a recovery order. The existing paragraphs refer to residence, contact and
specific issues orders. The amendment replaces these references with references to
parenting orders about whom a child is to live, spend time, or communicate with and
parenting orders about parental responsibility or components of parental
responsibility. This amendment ensures that the more generic description of
parenting orders operates.

Item 78 ­ Subparagraphs 68B(1)(b)(ii) and (iii)

173. Item 78 repeals subparagraphs 68B(1)(b)(ii) and (iii) which provide that the
court can issue an injunction relating to the welfare of a child. The existing
provisions refer to people who have residence, contact and specific issues orders. The
amendment replaces these with references to parenting orders about with whom a
child is to live, spend time, or communicate and parenting orders about parental
responsibility or components of parental responsibility. This ensures that the more
generic description of parenting orders operates.

Item 79 ­ Paragraph 69Z(2)(c)

174. Item 79 repeals and replaces paragraph 69Z(2)(c) which provides that a medical
procedure in relation to parentage testing may not be carried out on a child under 18
without various consents. The new provision replaces references to a person with a
specific issues order about parental responsibility, with a reference to a person with a
parenting order under which they have parental responsibility for the child. This
amendment ensures that the more generic description of parenting orders operates.

Item 80 ­ Paragraph 69ZA(1)(c)

175. Item 80 repeals paragraph 69ZA(1)(c) which provides that a person is not liable
for civil or criminal liability in relation to the proper carrying out of a parentage
testing procedure, provided there is appropriate consent. The new provision replaces
references to a person with a specific issues order about parental responsibility, with a
reference to a person with a parenting order under which they have parental
responsibility for the child. This amendment ensures that the more generic
description of parenting orders operates.

Item 81 ­ Subparagraph 69ZH(3)(a)(ii)

176. Item 81 repeals and replaces subparagraph 69ZH(3)(a)(ii) which provides for
the extension of the operation of presumptions of parentage arising out of marriage to
other parts of the Act which are confined to a child of a marriage. The new



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provisions replace references to residence and contact with references to with whom
the child lives and spends time.

Item 82 ­ Subsection 70J(1)

177. Item 82 amends subsection 70J(1) which deals with the effect of registration of
an overseas order on the exercise of jurisdiction by an Australian court. The
amendment replaces the reference to `a residence, contact or a care order' with a
reference to `a Subdivision C parenting order' inserted by item 47 of this Schedule.
This amendment ensures that the more generic description of parenting orders
operates.

Item 83 ­ Paragraph 70J(1)(a)

178. Item 83 repeals and replaces paragraph 70J(1)(a) which deals with the
circumstances in which an Australian court can exercise jurisdiction where an
overseas child order is registered under section 70G. The new provision expands the
description of the type of overseas orders which, if registered, means that the court
has to have the consent of the parties under the orders before it can exercise
jurisdiction. The expanded description includes orders which provide for whom the
child is to live, spend time and have contact with and who has rights of custody or
access in relation to the child. This amendment ensures that the more generic
description of parenting orders operates.

Item 84 ­ Subsection 70J(2)

179. Item 84 amends subsection 70J(2) which provides the limited circumstances in
which the court can exercise jurisdiction and make parenting orders in relation to a
child who is subject to an overseas parenting order. The amendments substitute `a
Subdivision C parenting order' (inserted by item 47 of this Schedule) for a reference
to `a residence order, a contact order or a care order'. This amendment ensures that
the more generic description of parenting orders operates.

Item 85 ­ Paragraph 70J(2)(b)

180. Item 85 amends paragraph 70(J)(2)(b) which provides that a court may not make
a Subdivision C parenting order in relation to a child who is the subject of an overseas
child order unless it is satisfied that there has been a change in the circumstances of a
child. The amendment replaces the reference to `a residence order, contact order or a
care order' with a reference to `a Subdivision C parenting order' (inserted by item 47
of this Schedule). This amendment ensures that the more generic description of
parenting orders operates.

Item 86 ­ Paragraph 70K(b)

181. Item 86 amends paragraph 70K(b) which provides that a court must cancel the
registration of an overseas child order if it makes a residence order, contact order or a
care order in relation to the child. The amendment replaces the reference to `a
residence order, contact order or a care order' with a reference to `a Subdivision C




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parenting order' (inserted by item 47). This amendment ensures that the more generic
description of parenting orders operates.

Item 87 ­ Subsection 70L(1) (paragraph (a) of the definition of Australian child
order)

182. Item 87 amends the definition of `Australian child order' in subsection 70L(1).
Section 70L deals with the relationship between Australian orders and registered
overseas child orders. The amendment replaces the reference to `a residence order, a
contact order or a care order' with a reference to `a Subdivision C parenting order'
(inserted by item 47 of this Schedule). This amendment ensures that the more generic
description of parenting orders operates.

Item 88 ­ Subsection 70L(1) (paragraph (a) of the definition of responsible
person)

183. Item 88 repeals and replaces the definition of a `responsible person' in
subsection 70L(1). Section 70L deals with the relationship between Australian orders
and registered overseas child orders. The amendment replaces the reference to `live
or have contact with' under an Australian or overseas child order with references to
`live', `spend time with' and `have contact with'.

Item 89 ­ Paragraph 70M(1)(a)

184. Item 89 repeals and replaces paragraph 70M(1)(a) which deals with the
circumstances under which a Registrar can send documents to an overseas
jurisdiction. The amendment replaces references to residence, contact and specific
issues orders with a reference to a parenting order, other than a child maintenance
order. This amendment ensures that the more generic description of parenting orders
operates.

Item 90 ­ Paragraph 70M(3)(a)

185. Item 90 repeals and replaces paragraph 70M(3)(a) which deals with who may
request that documents may be transmitted overseas. The amendment adds a person
with whom the child is supposed to spend time to the list. This ensures the
terminology of the section is consistent with the new terminology in the Act.

Item 91 ­ Subsection 70N(1)

186. Item 91 repeals and replaces subsection 70N(1) which provides for regulations
to be made about sending Australian orders overseas. The amendment removes the
references to residence, contact and specific issues orders and replaces this with a
reference to a parenting order. This amendment ensures the more generic description
of parenting orders operates.

Item 92 ­ Paragraphs 79A(1AA)(b) and (c)

187. Item 92 amends paragraphs 79A(1AA)(b) and (c). Subsection 79A(1AA)
defines a person who has `caring responsibility' for a child for the purposes of



                                         175
subsection 79A(1). The amendment removes the references to residence and specific
issues orders and replaces them with references to parenting orders that provide that a
child is to live with a person or that a person has parental responsibility for a child.
This amendment ensures the more generic description of parenting orders operates.

Item 93 ­ Paragraphs 90K(2)(b) and (c)

188. Item 93 repeals paragraphs 90K(2)(b) and (c). Subsection 90K(2) defines a
person who has `caring responsibility' for a child for the purposes of
paragraph 90K(1)(d). The amendment removes the references to residence and
specific issues orders and replaces them with references to parenting orders that
provide that a child is to live with a person or that a person has parental responsibility
for a child. This amendment ensures the more generic description of parenting orders
operates.

Item 94 ­ Subparagraph 91(1)(b)(i)

189. Item 94 repeals subparagraph 91(1)(b)(i) to remove the references to residence,
contact and specific issues orders in relation to the Attorney-General's power to
intervene in any proceedings under this Act. This reference is replaced with a
reference to a parenting order, other than a child maintenance order. This amendment
ensures the more generic description of parenting orders operates.

Item 95 ­ Paragraphs 92A(2)(ba) and (bb)

190. Item 95 repeals paragraphs 92A(2)(ba) and (bb) which relate to persons who
may intervene in proceedings. The amendment replaces the references to a person
with a residence order or specific issues order with a reference to a parenting order.
This amendment ensures the more generic description of parenting orders operates.

Item 96 ­ Paragraph 111B(1A)(c)

191. Item 96 repeals and replaces paragraph 111B(1A)(c) which deals with the
Central Authority under the regulations applying for an order on behalf of another
person under the Convention on the Civil Aspects of International Child Abduction.
The reference to a contact order is replaced by a parenting order that deals with a
person with whom the child is to spend time or communicate. This amendment
ensures the more generic description of parenting orders operates.

Item 97 ­ Paragraph 111B(4)(b)

192. Item 97 repeals and replaces paragraph 111B(4)(b) which deals with who has
rights of custody for the purpose of the Convention on the Civil Aspects of
International Child Abduction. The amendment replaces the references to residence
order and specific issues order with a reference to a parenting order about whom a
child is to live with and who has parental responsibility for a child. This amendment
ensures the more generic description of parenting orders operates.




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Item 98 ­ Paragraph 111B(4)(d)

193. Item 98 repeals and replaces paragraph 111B(4)(d) which deals with who has
rights of custody for the purpose of the Convention on the Civil Aspects of
International Child Abduction. The amendment removes the reference to a contact
order and replaces it with reference to a parenting order about time spent with a child
or communication with a child. This amendment ensures the more generic
description of parenting orders operates.

Item 99 ­ Subsection 111B(4) (note)

194. The note inserted by item 99 explains that for the purpose of the Convention on
the Civil Aspects of International Child Abduction, a parent with a parenting plan also
has rights in respect of a child. The note is amended to remove references to residence
orders, specific issues orders and contact orders. The term `parenting orders' is used
instead.

Item 100 ­ Section 111CW

195. Item 100 repeals section 111CW which deals with how courts should deal with
court proceedings for contact made in overseas jurisdictions. This reference to
contact is replaced with references to with whom a child is to spend time and
communicate. This is in the context of the provisions in Part XIIIAA of the Act
relating to the international protection of children.

Item 101 ­ Paragraph 117A(1)(a)

196. Item 101 repeals paragraph 117A(1)(a) which relates to the reparation for
certain losses and expenses relating to a child being taken away in contravention of a
residence or contact order. This is replaced by a right to the same reparation for
certain losses and expenses relating to a person who takes a child away from a person
with an order providing for whom the child lives, spends time or communicates with.

Migration Act 1958

Item 102 ­ Subsection 192(8)

197. Item 102 replaces the reference to a `specific issues order' in the definition of a
guardian in subsection 192(8) of the Migration Act 1958, with a reference to a person
with a `parenting order' as defined under the Family Law Act 1975. Section 192 deals
with the detention of a person whose visa is liable to be cancelled. The amendment is
a consequential amendment to ensure that the terminology is consistent.

Part 2 ­ Savings

Item 103 ­ Definitions

198. This item sets out the definitions of terms used in Part 2, which deals with
saving regulations made under the existing Act.



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Item 104 - Saving of regulations

199. This item provides for the saving of regulations made under the existing Act. It
provides that even where a provision of the existing Act (specified in the table) has
been repealed, regulations that were made for the purposes of that provision, and were
in force immediately before the commencement of this Schedule, continue to have
effect as if they had been made for the purposes of the corresponding provision of the
new Act (also specified in the table).




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SCHEDULE 9 ­ RELOCATION OF DEFINED TERMS USED IN PART VII


200. The effect of Schedule 9 is to move all of the defined terms from Part VII of the
Act related to children to subsection 4(1) which is the general definition section for
the whole of the Family Law Act. This will form a dictionary for all of the terms
defined in Part VII. The aim is to improve the readability of the Act for users.


201. This Schedule has been developed partially in response to Recommendation 50
of the LACA Committee. Recommendation 50 was that the Family Law Act be
redrafted to provide a consolidated dictionary or glossary of defined terms, to assist in
easier comprehension of the Act. As a first step, the defined terms in Part VII have
been consolidated. Further work on a dictionary for the entire Act would be resource
intensive and could be done as part of a rewrite of the Act. Many of the provisions
particularly those related to property and superannuation require consequential
amendments to a large number of other Commonwealth Acts. In addition there is
considerable work to be done to update Regulations and Rules.

A New Tax System (Family Assistance) Act 1999

Item 1 - amendment to definition of family law order

202. This item is a consequential amendment to the definition provision in section 3
of A New Tax System (Family Assistance) Act 1999. The definition of `family law
order' is amended by changing the reference to `section 60D' of the Family Law Act
in relation to family violence orders to `section 4' of the Family Law Act. The
amendment is necessary as the definition of a `family violence order' has moved from
section 60D, which contained definitions for Part VII about children, to the general
definition provision in subsection 4(1) of the Act.

Australian Passports Act 2005

Item 2 ­ amendment to subsection 6(2)

203. Item 2 is a consequential amendment to the definition provision in section 6 of
the Australian Passports Act 2005. Subsection 6(2) refers to `an overseas child order
within the meaning of section 70F of the Family Law Act'. The amendment removes
the reference to `section 70F'. The amendment is necessary as section 70F is
repealed as a consequence of moving the definitions in the provision to
subsection 4(1) which is the general definition provision for the Act.


Child Support (Assessment) Act 1989

Item 3 ­ amendment to definition of court order

204. This item is a consequential amendment to amend paragraph (b) of
subsection 8A(7) of the Child Support (Assessment) Act 1989. The definition of court


                                          179
order is amended by changing the reference to `section 60D' of the Family Law Act
to `section 4' of the Family Law Act. The amendment is necessary as the definition
of a `family violence order' has moved from section 60D, which contained definitions
for Part VII about children, to the general definition provision in subsection 4(1) of
that Act.

Child Support (Registration and Collection) Act 1988

Item 4 ­ amendment to definition of child of a marriage

205. Item 4 is a consequential amendment to remove the reference to `Part VII' from
the definition of `child of a marriage' in section 4(1) of the Child Support
(Registration and Collection) Act 1988. The amendment is necessary as the
definitions previously found in Part VII of the Family Law Act 1975 have moved to
subsection 4(1) which is the general definition provision in the Act.

Item 5 ­ amendment to definition of step-parent

206. Item 5 is a consequential amendment to remove the reference to `Part VII' from
the definition of `step-parent' in section 4(1) of the Child Support (Registration and
Collection) Act 1988. The amendment is necessary as the definitions previously
found in Part VII of the Family Law Act 1975 have moved to subsection 4(1) which is
the general definition provision in the Act.

Family Law Act 1975

Item 6 ­ insert to subsection 4(1)

207. Item 6 moves the definition of `adopted' in relation to a child from section 60D,
which was where the defined terms for Part VII were, to subsection 4(1) which is the
main definition provision in the Act.

Item 7 ­ insert to subsection 4(1)

208. Item 7 moves to the definition provision in subsection 4(1) the definition of
`alleged contravention', which is currently in Subdivision D of Division 6 of Part VII.
That definition is relevant to provisions dealing with how the court deals with people
who have been arrested for contravention of a contact order. The definition in this
case is limited to this subdivision due to the specific reference to the arrested person
which would not be relevant in other parts of the Act.
Item 8 ­ insert to subsection 4(1)

209. Item 8 moves to the definition provision in subsection 4(1) the definition of
`alleged offender', which is currently in Subdivision D of Division 6 of Part VII.
That definition is relevant to provisions dealing with how the court deals with people
who have been arrested for contravention of a contact order. The definition in this
case is limited to this subdivision due to the specific reference to the arrested person
which would not be relevant in other parts of the Act.




                                          180
Item 9 ­ insert to subsection 4(1)

210. Item 9 moves to the definition provision in subsection 4(1) the definition of
`applied provisions', which is currently in Division 13A of Part VII. That division
deals with applications related to contraventions of orders affecting children. There
are consequential changes to the references in the provisions due to the changes to the
compliance regime described in Schedule 2.

Item 10 ­ insert to subsection 4(1)

211. Item 10 moves to the definition provision in subsection 4(1) the definition of
`appropriate authority', which is currently in section 67H which is the interpretation
section in Subdivision C of Division 8 of Part VII and relates to the location and
recovery of children. The definition is limited to Part VII as it has particular
significance to information about the location of children which would not be relevant
to other parts of the Act.

Item 11 ­ insert to subsection 4(1)

212. Item 11 moves to the definition provision in subsection 4(1) the definition of
`arresting person', which is currently in Subdivision D of Division 6 of Part VII. The
definition is relevant to applications related to contraventions of orders affecting
children however the definition also has a generic application.

Item 12 ­ insert to subsection 4(1)

213. Item 12 moves to the definition provision in subsection 4(1) the definition of
`artificial conception procedure', which is currently in section 60D, which was where
the defined terms for Part VII used to be.

Item 13 ­ insert to subsection 4(1)

214. Item 13 moves to the definition provision in subsection 4(1) the definition of
`birth', which is currently in section 60D, which was where the defined terms for
Part VII used to be. It makes it clear that a birth includes a still birth. The definition
will have generic application throughout the Act. The term is relevant for provisions
about the child maintenance that a mother can claim for child birth expenses. The
only other reference to `birth' in the Act is in section 102 about what can be used as
proof of birth which refers to a certificate or entry of birth.

Item 14 ­ insert to subsection 4(1)

215. Item 14 moves to the definition provision in subsection 4(1) the definition of
`captain', which is currently in section 65X which is the interpretation provision for
Subdivision E of Part VII which is about obligations under parenting orders relating
to the taking or sending of a child from Australia. Certain obligations are placed on a
captain of an aircraft or ship who is appropriately served to prevent the removal of a
child from Australia.




                                           181
Item 15 ­ insert to subsection 4(1)

216. Item 15 moves to the definition provision in subsection 4(1) the definition of
`child', which is currently in section 60D, which was where the defined terms for
Part VII used to be. It makes it clear that a child includes both an adopted and a still
born child. The term has generic application.

Item 16 ­ insert to subsection 4(1)

217. Item 16 moves to the definition provision in subsection 4(1) the definition of
`childbirth maintenance period', which is currently in section 60D, which was where
the defined terms for Part VII used to be. The term has generic application. The
normal period that a father will be obliged to pay maintenance in relation to the birth
of a child is 2 months prior to the due date of birth but may be extended up to 3
months if the mother is advised by a doctor to stop working for health reasons related
to the pregnancy.

Item 17 ­ insert to subsection 4(1)

218. Item 17 moves to the definition provision in subsection 4(1) the definition of
`child maintenance order', which is currently in section 60D, which was where the
defined terms for Part VII used to be. The term has generic application. It refers the
user to subsection 64B(5) in Division 5 which sets out what parenting orders are.

Item 18 ­ insert to subsection 4(1)

219. Item 18 moves to the definition provision in subsection 4(1) the definition of
`child maintenance provisions', which is currently in section 60D, which was where
the defined terms for Part VII used to be. The term has generic application. It refers
the user to subsection 63C(5) in Division 4 which sets out what parenting plans are.

Item 19 ­ insert to subsection 4(1)

220. Item 19 moves to the definition provision in subsection 4(1) the definition of
`child welfare law', which is currently in section 60D, which was where the defined
terms for Part VII used to be. The term has generic application.

Item 20 ­ insert to subsection 4(1)

221. Item 20 moves to the definition provision in subsection 4(1) the definition of
`child welfare officer', which is currently in section 60D, which was where the
defined terms for Part VII used to be. The term has generic application.

Item 21 ­ insert to subsection 4(1)

222. Item 21 moves to the definition provision in subsection 4(1) the definition of
`child welfare provisions', which is currently in section 60D, which was where the
defined terms for Part VII used to be. The definition refers the user to
subsection 63C(4) which specifies certain topics dealt with in parenting plans as child
welfare provisions.


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Item 22 ­ insert to subsection 4(1)

223. Item 22 moves to the definition provision in subsection 4(1) the definition of
`Commonwealth information order', which is currently in section 67H. Section 67H is
the interpretation provision of Subdivision C of Division 8 of Part VII about the
location and recovery of children. It refers the user to subsection 67J(2) which makes
clear that it is an order to the Secretary of a Department to provide the Registry
Manager of the court with information about the location of a child which is
contained in the agency records.

Item 23 ­ insert to subsection 4(1)

224. Item 23 moves to the definition provision in subsection 4(1) the definition of
`community service order', which is currently in section 70NB in Subdivision 13A
dealing with compliance with parenting orders. Community service orders are one of
the types of orders that the court can make for contraventions of orders relating to
children. It refers the user to subsection 70NFC(3). This is a consequential
amendment to the numbering due to changes to the compliance regime in Schedule 2.
The provision sets out the types of orders that might be classified as community
service orders.

Item 24 ­ insert to subsection 4(1)

225. Item 24 moves to the definition provision in subsection 4(1) the definition of
`contravened', which is currently in section 70NB in Subdivision 13A dealing with
compliance with parenting orders. It refers the user to section 70NAC. This is a
consequential amendment to the numbering due to changes to the compliance regime
in Schedule 2. The provision makes clear that a person has contravened an order if
they intentionally fail to comply or make no reasonable attempt to comply with an
order or if they prevent compliance by a person bound by an order, or aid or abets a
contravention by another person bound by the order.

Item 25­ insert to subsection 4(1)

226. Item 25 moves to the definition provision in subsection 4(1) the existing
definition of `de facto relationship' which is currently in section 60D, which was
where the defined terms for Part VII used to be. The term has generic application
throughout the Act.

Item 26­ insert to subsection 4(1)

227. Item 26 moves to the definition provision in subsection 4(1) the existing
definition of `Department' which is currently in section 67H, which is the
interpretation provision of Subdivision C of Division 8 about the location and
recovery of children. The definition is limited in application to the provisions about
these orders.

Item 27­ insert to subsection 4(1)



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228. Item 27 moves to the definition provision in subsection 4(1) the existing
definition of `education' which is currently in section 60D, which was where the
defined terms for Part VII used to be. The definition will have generic application. It
makes it clear that `education', wherever used in the Act, can include apprenticeship
and vocational education training. This is relevant to provisions about child
maintenance in Part VII about children and also to provisions about property
settlements in Part VIII of the Act.

Item 28­ insert to subsection 4(1)

229. Item 28 moves to the definition provision in subsection 4(1) the existing
definition of `excluded order' which is currently in section 70F which is the
interpretation provision for Subdivision C of Division 13. That subdivision concerns
the registration of overseas orders.
Item 29 ­ insert to subsection 4(1)

230. Item 29 moves to the definition provision in subsection 4(1) the definition of
`family violence order', which is currently in section 60D, which was where the
defined terms for Part VII used to be.

Item 30 ­ insert to subsection 4(1)

231. Item 30 moves to the definition provision in subsection 4(1) the definition of
`guardian', which is currently in section 60D, which was where the defined terms for
Part VII used to be.

Item 31 ­ insert to subsection 4(1)

232. Item 31 moves to the definition provision in subsection 4(1) the definition of
`information about the child's location', which is currently in section 67H. This is the
interpretation provision of Subdivision C of Division 8 about the location and
recovery of children.

Item 32 ­ insert to subsection 4(1)

233. Item 32 moves to the definition provision in subsection 4(1) the definition of
`interests', which is currently in section 60D, which was where the defined terms for
Part VII used to be.

Item 33 ­ insert to subsection 4(1)

234. Item 33 moves to the definition provision in subsection 4(1) the definition of
`location order', which is currently in section 67H. This is the interpretation
provision of Subdivision C of Division 8 about the location and recovery of children.
The definition refers to subsection 67J(1) which sets out that a `location order' relates
to orders by the court for information about a child's location to be provided to the
Registry Manager.

Item 34 ­ insert to subsection 4(1)



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235. Item 34 moves to the definition provision in subsection 4(1) the definition of
`medical expenses', which is currently in section 60D, which was where the defined
terms for Part VII used to be.

Item 35 ­ insert to subsection 4(1)

236. Item 35 moves to the definition provision in subsection 4(1) the definition of
`medical practitioner', which is currently in section 60D, which was where the
defined terms for Part VII used to be.

Item 36 ­ insert to subsection 4(1)

237. Item 36 moves to the definition provision in subsection 4(1) the definition of
`member of the family' for the purposes of the definition of `step-parent', which is
currently in section 60D, which was where the defined terms for Part VII used to be.
The details of the definition are at subsection 4(1AB). That provision sets out in
detail who is a family member.

Item 37 ­ insert to subsection 4(1)

238. Item 37 moves to the definition provision in subsection 4(1) the definition of
`order under this Act affecting children', which is currently in section 70NB which
contains the definitions relevant to contravention applications.

Item 38 ­ insert to subsection 4(1)

239. Item 38 moves to the definition provision in subsection 4(1) the definition of
`parent', which is currently in section 60D, which was where the defined terms for
Part VII used to be. The definition is restricted to Part VII as it specifically relates to
references in relation to a child who is adopted.

Item 39 ­ insert to subsection 4(1)

240. Item 39 moves to the definition provision in subsection 4(1) the definition of
`parentage testing order', which is currently in section 60D, which was where the
defined terms for Part VII used to be.

Item 40 ­ insert to subsection 4(1)

241. Item 40 moves to the definition provision in subsection 4(1) the definition of
`parentage testing procedure', which is currently in section 60D, which was where the
defined terms for Part VII used to be.

Item 41 ­ insert to subsection 4(1)

242. Item 41 moves to the definition provision in subsection 4(1) the definition of
`parental responsibility', which is currently in section 60D, which was where the
defined terms for Part VII used to be.




                                            185
Item 42 ­ insert to subsection 4(1)

243. Item 42 moves to the definition provision in subsection 4(1) the definition of
`parenting order', which is currently in section 60D, which was where the defined
terms for Part VII used to be.

Item 43 ­ insert to subsection 4(1)

244. Item 43 moves to the definition provision in subsection 4(1) the definition of
`pending'.

Item 44 ­ insert to subsection 4(1)

245. Item 44 moves to the definition provision in subsection 4(1) the definition of
`prescribed adopting parent', which is currently in section 60D, which was where the
defined terms for Part VII used to be.

Item 45 ­ insert to subsection 4(1)

246. Item 45 moves to the definition provision in subsection 4(1) the definition of
`prescribed child welfare authority,' which is currently in section 60D, which was
where the defined terms for Part VII used to be. The definition is relevant for
Part VII in relation to children and in Part IX in relation to who can intervene in
proceedings where there are issues of child abuse.

Item 46­ insert to subsection 4(1)

247. Item 46 moves to the definition provision in subsection 4(1) the definition of
`primary order', which is currently in section 70NB which contains the definitions for
Division 13A about contravention applications. These provisions are substantially
renumbered and reordered by Schedule 2.

Item 47 ­ insert to subsection 4(1)

248. Item 47 moves to the definition provision in subsection 4(1) the definition of
`principal officer', which is currently in section 67H, which is the interpretation
provision of Subdivision C of Division 8 about the location and recovery of children.
These officers are prescribed by Regulations.

Item 48 ­ insert to subsection 4(1)

249. Item 48 moves to the definition provision in subsection 4(1) the definition of
`professional ethics', which is currently in section 60D, which was where the defined
terms for Part VII used to be. The definition is generic and will apply to other uses of
this term within the Act such as in subsections 111CV(2) and (3) in Division 4 of
Part XIIIAA, which concerns the international protection of children.




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Item 49 ­ insert to subsection 4(1)

250. Item 49 moves to the definition provision in subsection 4(1) the definition of
`reasonable excuse for contravening', which is currently in Division 13A about
contravention applications.




                                         187
Item 50 ­ insert to subsection 4(1)

251. Item 50 moves to the definition provision in subsection 4(1) the definition of
`recovery order', which is currently in section 67H. This is the interpretation
provision of Subdivision C of Division 8 about the location and recovery of children.

Item 51 ­ insert to subsection 4(1)

252. Item 51 moves to the definition provision in subsection 4(1) the definition of
`Registry Manager', which is currently in section 67H. This is the interpretation
provision of Subdivision C of Division 8 about the location and recovery of children.

Item 52 ­ insert to subsection 4(1)

253. Item 52 moves to the definition provision in subsection 4(1) the definition of
`State', which is currently in section 70B. This is the interpretation provision for
Subdivision B of Division 13 of Part VII which is about the registration of State and
Territory orders about children.

Item 53 ­ insert to subsection 4(1)

254. Item 53 moves to the definition provision in subsection 4(1) the definition of
`step-parent' which is currently in section 60D, which was where the defined terms
for Part VII used to be.

Item 54 ­ insertion of new subsection 4(1AB) and subsection 4(1AC)

255. Item 54 moves from subsection 60D(2) and (3) the definition of `member of
family and relative' to the general definition provision subsection 4(1). These
definitions are relevant for the purpose of the definition of `step-parent' and the
definition of `family violence' which has also moved from section 60D, the definition
section in Part VII. The description of who is a member of a family or relative has
not changed.

Item 55 ­ repeal of section 60D

256. Item 55 repeals section 60D of Part VII. This is consequential to moving all of
the definitions in Part VII into the general definition section in subsection 4(1) of the
Act.

Item 56 ­ amendment to subsection 65R(2)

257. This item omits the reference to `subsection (1)' in section 65R as a
consequence of the repeal of subsection 65R(2) by item 57. There will now be only
one subsection in section 65R. Subsection 65R(2) is the interpretation provision of
Subdivision D which deals with people who have been arrested in Division 6 related
to parenting orders. It is repealed as a consequence of moving the definitions in the
interpretation section to the general definition provision in subsection 4(1) to assist in
simplifying comprehensibility of the Act.




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Item 57 - repeal of 65R(2)

258. This item repeals subsection 65R(2) which is the interpretation provision of
Subdivision D of Division 6 of Part VII which deals with people who have been
arrested for breach of parenting orders. It is repealed as a consequence of moving the
definitions in the interpretation section to the general definition provision in
subsection 4(1) to assist in simplifying comprehensibility of the Act.

Item 58 - repeal of 67H

259. This item repeals section 67H which is the interpretation provision for
Subdivision C of Division 8 of Part VII. That subdivision deals with the location and
recovery of children. The repeal of this section is necessary as a consequence of
moving the definitions currently in the provision to subsection 4(1), the general
definition provision in the Act.

Item 59 ­ repeal of 70B

260. Item 59 repeals section 70B which is the interpretation provision for
Division 13A of Part VII. That division deals with the consequences of failure to
comply with orders, and other obligations, that affect children. The repeal of this
section is necessary as a consequence of moving the definitions currently in the
provision to subsection 4(1), the general definition provision in the Act.

Item 60 ­ repeal of 70F

261. Item 60 repeals section 70F which is the interpretation provision for
Subdivision C of Division 13 of Part VII. That subdivision relates to the registration
of overseas orders. The item is repealed as a consequence of moving the definitions
in the provision to subsection 4(1), the general definition provision in the Act.

Item 61 ­ amendment to definition of Australian child order

262. Item 61 omits the reference to `section 70B' from the second paragraph of the
definition of `Australian child order' which is in section 70L. The definition of
`Australian child order' currently includes a reference to `a State child order as
defined in section 70B'. This amendment is a consequence of the definition of `State
child order' in section 70B being moved to the general definition provision,
subsection 4(1) in the Act. Section 70L is about the relationship between Australian
orders and registered overseas orders.

Item 62 ­ amendment to subsection 92(1A)

263. Item 62 removes the reference to the definitions in Part VII from
subsection 92(1A) in Part IX of the Act. That section provides that a person who has
been required to submit a test for a parentage testing procedure can intervene in the
proceedings for principal relief. The amendment is a consequence of moving the
definitions in Part VII to subsection 4(1), the general definition provision in the Act.




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Item 63 - amendment to paragraph 109A(1)(a)

264. Item 63 removes the reference to the definition of `order under this Act affecting
children' in Division 13A of Part VII from paragraph 109A(1)(a) of the Act.
Division 13A of Part VII provides for the consequences that arise from contravention
of orders affecting children. The removal is a consequence of the definitions about
contravention applications in Division 13A being moved to the general definition
section in subsection 4(1) of the Act. Section 109 relates to the rules of court relating
to enforcement in Part III which is about the enforcement of decrees.

Item 64 ­ amendment to subsection 112AP(9)

265. Item 64 removes the reference to the definition of `order under this Act affecting
children' in Division 13A of Part VII from subsection 112AP(9) of the Act.
Division 13A of Part VII provides for the consequences that arise from contravention
of orders affecting children. This is a consequence of the definitions about
contravention applications in Division 13A being moved to the general definition
section in subsection 4(1) of the Act. This cross reference is in a definition in
Part XIIIB of the Act about contempt of court.

Part 2 ­ Savings

Item 65 ­ Definitions

266. This item sets out the definitions of terms used in Part 2, which deals with
saving regulations made under the existing Act.

Item 66 ­ Saving of regulations

267. This item provides for the saving of regulations made under the existing Act. It
provides that even where a provision of the existing Act (specified in the table) has
been repealed, regulations that were made for the purposes of that provision, and were
in force immediately before the commencement of this Schedule, continue to have
effect as if they had been made for the purposes of the corresponding provision of the
new Act (also specified in the table).




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