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2010 - 2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Family Law Legislation Amendment
(Family Violence and Other Measures) Bill 2011
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by the authority of the Attorney-General,
the Hon Robert McClelland MP)
Family Law Legislation Amendment (Family Violence and Other Measures) Bill
2011
Outline
The Family Law Legislation Amendment (Family Violence and Other Measures)
Bill 2011 (the Bill) will amend the Family Law Act 1975 (Cth) to provide
better protection for children and families at risk of violence and abuse.
The Bill also makes several technical amendments which correct drafting and
minor policy oversights and provide other efficiencies for the courts and
litigants.
The Government is introducing amendments to some of the items in Schedule 1
of the Bill in response to the Senate Legal and Constitutional Affairs
Legislation Committee August 2011 report into the Bill. The Committee made
eight recommendations; six of these recommended amendments.
The amendments to Schedule 1 of the Bill respond to recommendations one,
three, five and seven of the Committee's report. The amendments implement
recommendations one and three of the Committee's report and will improve
the effectiveness of the Bill. The amendment in response to recommendation
five will clarify the commencement date of the provisions of Schedule 1 of
the Bill. The amendment in response to recommendation seven relates to the
application of the amendments contained in Schedule 1 of the Bill.
The amendments to Schedule 1 of the Bill:
. provide certainty around the commencement date of the provisions of
Schedule 1 of the Bill
. simplify the new provision requiring the court to give greater weight
to the protection of children from harm when determining what is in a
child's best interests. For consistency, the same amendment is made
to the proposed subparagraph which sets out what advisers are obliged
to tell individuals they should consider in determining their own
arrangements for children
. better targets what a court can consider in relation to family
violence orders as part of considering a child's best interests. It
replaces the additional consideration concerning family violence
orders with a new paragraph which allows a court to consider current
and past family violence orders applying to a child or a member of the
child's family. It also allows the court to look at the nature of the
order, the circumstances in which the order was made, any evidence
admitted and any findings made by the court that made the order, and
any other relevant matter, and
. amends the application provision at item 45 of Schedule 1 of the Bill
so as to apply the amendments contained in that Schedule only to
proceedings instituted on or after commencement of Schedule 1.
These amendments do not alter the position that the Bill retains the
substance of the shared parenting laws introduced in the Family Law
Amendment (Shared Parental Responsibility) Act 2006 (Cth). With these
amendments, the Family Law Act will continue to promote a child's right to
a meaningful relationship with both parents where this is safe.
Financial Impact
The amendments in this Bill have negligible financial implications.
NOTES ON CLAUSES
Amendment 1: Clause 2, Commencement
1. Government amendment 1 amends the commencement date for Schedule 1 of
the Bill to provide certainty for potential litigants, litigants and
their advisors. It responds to recommendation five of the Senate
Legal and Constitutional Affairs Committee report on the Bill.
2. Clause 2 of the Bill provides for the commencement of the Act.
Subclause 2(1) provides that each provision specified in column 1 of
the table will commence, or is taken to have commenced, on the day or
at the time specified in column 2 of the table. This Government
amendment to column 2 of subclause 2(1) of the Bill relates to item 2
of the table.
3. The amendment removes the option for the Schedule to commence on a
date to be fixed by proclamation. Instead, it provides that Schedule
1 of the Bill will commence on the day after the end of the period of
6 months beginning on the day the Act receives the Royal Assent.
4. The Committee's recommendation proposed a commencement date of three
months after Royal Assent. This amendment reflects a commencement
date of six months in order to provide sufficient time for the
relevant courts to update their Rules before commencement, as well as
allowing time for an education campaign to be implemented
communicating the effect of the amendments in the Bill in accordance
with recommendation six of the Committee's report.
Amendment 2: Schedule 1, item 17 (After subsection 60CC(2))
5. Government amendment 2 omits the words 'If there is any inconsistency
in' in item 17 of the Bill. This removes complexity in the drafting
and will avoid the need for a court to first determine whether there
is an inconsistency between the two primary considerations for
determining a child's best interests before giving greater weight to
the consideration about protection from harm.
6. The amendment preserves the Government's intent that, in determining a
child's best interests, greater weight needs to be given to protecting
children from harm. This amendment does not change the importance of
also considering the benefit to a child in having a meaningful
relationship with both of the child's parents, nor the weight that
should be given to that consideration in cases where there are no
concerns for the child's safety.
7. This amendment implements recommendation 1 of the Senate Committee's
report.
Amendment 3: Schedule 1, item 19 (Paragraph 60CC(3)(k))
8. Government amendment 3 implements recommendation 3 of the Senate
Committee's report and reflects the wording provided by the Hon.
Richard Chisholm AM to the Senate Committee during its inquiry into
the Bill.
9. The amendment omits proposed new paragraph 60CC(3)(k) which allowed
the court to consider any family violence orders which apply to a
child or a member of the child's family. The amendment inserts a
replacement paragraph which allows the court to consider evidence of
any family violence order which has or does apply to the child or a
member of the child's family. Further, it provides for the court to
consider any relevant inferences that can be drawn from those family
violence orders, taking into account the nature of the order, the
circumstances in which it was made, and evidence admitted and any
findings made by the court that made the order, and any other relevant
matter.
10. The amendment reflects the position that the relevant circumstances
surrounding the making of family violence orders should be considered
in determining the best interests of the child and are likely to be of
greater probative value than the mere existence of the orders.
11. This amendment will provide greater guidance to litigants
(particularly those who are self-represented) about the type of
evidence they might like to submit to a court in parenting matters.
This aligns with one of the stated objectives of the Bill, being to
encourage better evidence of family violence and child abuse to be
provided to the family courts.
12. The definition of 'family violence order' in subsection 4(1) of the
Family Law Act remains unchanged. This definition draws on orders
made under prescribed state and territory legislation.
13. The proposed amendments to paragraph 60CC(3)(k) are not intended to
restrict the matters to which the court may have regard under existing
paragraph 60CC(3)(m) of the Act.
Amendment 4: Schedule 1, item 22 (After Subdivision BA of Division 1 of
Part VII)
14. Government amendment 4 is designed to achieve consistency between the
information advisers must give to individuals in assisting them to
determine parenting arrangements with the way in which courts will
assess the best interests of a child during proceedings for Part VII
orders under the Act. To that end, it is consistent with Government
amendment 2.
15. This amendment removes complexity in the drafting of the Act and will
make it easier for advisers to provide clear guidance to individuals
on how to assess the best interests of a child. The new adviser
obligations, inserted by the Bill, will facilitate individuals, and
particularly parents, considering the protection of their children
from harm as a priority at an early stage in discussions.
Amendments 5 and 6: Schedule 1, item 45 (Amendments that apply to
proceedings instituted on or after commencement)
16. Government amendments 5 and 6 respond to concerns raised during the
Senate Committee inquiry about the effect of having the amendments in
Schedule 1 of the Bill applying to proceedings instituted before the
commencement date. They amend the item in the Bill so as to apply the
listed amendments contained in Schedule 1 of the Bill to only those
matters commenced on or after commencement and achieve a related
consequential matter. This aligns the provision with the current
heading in the Bill.
17. While the Committee had recommended a change to the heading of item
45, its report also indicated some uncertainty about the ability to
use the Regulation making power contained in item 48 of the Bill to
deliver an appropriate balance between the need to prioritise the
safety of children caught in family law disputes, the preference for
certainty of start dates for amendments and avoiding undue increased
time and costs for those litigants already before the court.
18. Given the imposition that would be put on the family courts and
litigants to parenting matters before the courts at the time of
commencement, not all of whose cases would involve concern for the
safety of children, the Government considers a legislative amendment
to apply the amendments prospectively is the best way to deliver an
appropriate balance between the protection of children and access to
justice for those litigants already in the family courts.
19. Government amendment 5 is consequential upon amendment 6. As a result
of only applying the amendments prospectively, there is no need to
make their application subject to item 47 which provides the
amendments made by Schedule 1 do not affect an order made under, or a
certificate given under subsection 60I(8) of, the Act as in force
immediately before commencement.
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