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2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Family Law Amendment (Validation of Certain Parenting
Orders and Other Measures) Bill 2010
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
the Honourable Robert McClelland MP)
Family Law Amendment (Validation of Certain Parenting Orders and Other
Measures) Bill 2010
Outline
The Family Law Amendment (Validation of Certain Parenting Orders and Other
Measures) Bill 2010 (the Bill) creates new statutory rights and liabilities
for families who may have been affected by the High Court's decision in
MRR v GR [2010] HCA 4. This decision casts doubt on the validity of
certain parenting orders made or purportedly made on or after 1 July 2006
when shared parenting reforms were introduced. Orders that may be affected
are those where the parents have equal shared parental responsibility and
the court has not considered certain criteria relating to equal time or, if
the case requires, substantial and significant time in accordance with
section 65DAA of the Family Law Act 1975.
The Bill creates new statutory rights and liabilities and ensures that
these are exercisable and enforceable as if they had been made under the
Family Law Act. People will be able rely on these rights and liabilities
in their day-to-day lives. Appeal rights against all orders affected by
the High Court's decision in MRR v GR would be preserved. People with
contested parenting orders will also be able to commence fresh family law
proceedings where the court did not specifically consider the reasonable
practicability of the parenting arrangement without having to demonstrate a
material change of circumstances. Family Courts are given jurisdiction and
powers to deal with new statutory rights and liabilities. Most
importantly, the Bill gives much needed certainty to families and their
children.
The Bill is based on the approach approved by the High Court in R v Humby;
ex parte Rooney (1973) 129 CLR 231 and other similar legislation such as
the Family Court of Western Australia (Orders of Registrars) Act 1997,
former Part XIVB of the Family Law Act inserted by Schedule 10 to the
Family Law Amendment (Shared Parental Responsibility) Act 2006, and the
Judiciary Legislation Amendment Act 2006.
The Bill also amends the Family Law Act to allow, but not require, a family
court to consider each of the statutory criteria in
subsections 65DAA(1) and (2) of that Act when considering an application
that it make a parenting order with the consent of parties to proceedings
where parents have, or are to have, equal shared parental responsibility
for the child. This will ensure that the family courts can give
appropriate weight to arrangements agreed by parents addressing how they
will care for their children.
Financial Impact
The amendments in this Bill have negligible financial implications.
NOTES ON CLAUSES
Clause 1: Short title
The short title for the Bill, once enacted, will be the Family Law
Amendment (Validation of Certain Parenting Orders and Other Measures) Act
2010.
Clause 2: Commencement
2. This clause provides for the commencement of the Act. Sections 1 to 3
of the Act will commence on the day the Act receives the Royal Assent.
Schedules 1 and 2 of the Act will commence on the day after the Act
receives the Royal Assent.
Clause 3: Schedules
3. Clause 3 provides that each Act specified in a Schedule to the Bill
will be amended or repealed as set out in the Schedules. This clause
also provides that each other Item in the Bill is to have effect
according to its terms.
Schedule 1 - Validation of certain parenting orders
Item 1: Interpretation
4. Item 1 defines a number of terms used in Schedule 1, namely, affected
order, consider, court, enforceable, enforcement law, liability,
Registrar, required matter and right. Of particular note
. consider is defined as having the same meaning as in section 65DAA of
the Family Law Act. The definition is intended to draw on the
reasoning in MRR v GR which held that the court must make findings
about the matters in section 65DAA of the Family Law Act when making
parenting orders;
. Registrar is defined to cover Registrars and Judicial Registrars to
the extent that their powers are or were exercised by them under a
delegation under the Family Law Rules 2004 or the Federal Magistrates
Court Rules 2001 or a direction given under section 102 of the Federal
Magistrates Act 1999. The definition is drafted in these terms to
ensure that Registrars and Judicial Registrars have powers under
Schedule 1 only to the extent of powers conferred on them by
delegation or direction. This recognises that the parenting orders
affected by the High Court's decision in MRR v GR may include orders
of Registrars or Judicial Registrars without conferring any additional
power.
5. Any other expression in Schedule 1 is taken to have the same meaning
as in the Family Law Act.
Item 2: Meaning of affected order etc.
6. Item 2 defines additional key terms used in Schedule 1. The Bill
creates new statutory rights and liabilities in response to 'affected
orders', which are certain orders for which the courts did not
consider 'required matters'.
7. Item 2(1) defines 'affected order' as a parenting order made before
the commencement of the Bill that provides, or was made on the basis
that another order provides, for the child's parents to have equal
shared parental responsibility for the child and for which the court
or Registrar did not consider the 'required matters'.
8. Item 2(2) defines 'required matters'. The definition of 'required
matters' differs according to whether or not the affected order was
made with the consent of all parties to the proceedings in which it
was made.
9. Where made without the parties' consent, the required matters are the
matters set out in paragraphs 65DAA(1)(b) and (2)(d) of the Family Law
Act. These paragraphs require the court or Registrar to consider
whether the child spending equal time with each of his or her parents
is reasonably practicable and, if not, whether the child spending
substantial and significant time with each of the parents is
reasonably practicable.
10. The definition of 'required matters' for parenting orders made with
the parties' consent is broader, and includes all matters under
subsections 65DAA(1) and 65DAA(2). Subsection 65DAA(1) requires the
court or Registrar to consider whether the child spending equal time
with both of the child's parents is in the child's best interests and
is reasonably practical and, if it is, to consider making an order
that the child spend equal time with both parents. If such an order
is not made, subsection 65DAA(2) requires the court or Registrar to
consider whether the child spending substantial and significant time
with both of the child's parents is in the child's best interests and
is reasonably practical and, if it is, to consider making an order
that the child spend substantial and significant time with both
parents. Separate findings by courts on each of these matters are
unnecessary for orders reflecting agreement between all interested
parties.
11. The definition of 'affected orders' extends to orders that have been
varied, revoked, set aside, revived or suspended during the time they
operated (Item 2(3)).
Item 3: Rights and liabilities under affected orders
12. Item 3 creates new rights and liabilities in relation to affected
orders.
13. Item 3(1) provides that the rights and liabilities are the same as if
the court or Registrar making the affected order had considered the
required matters for the order. These rights and liabilities may,
under Item 3(2), be exercised and enforced in the same way as similar
rights and liabilities arising under an order made by the court or
Registrar. They include the right to appeal against or apply for a
review of the affected order (Item 3(3)).
14. Item 3(4) clarifies that parties may seek to appeal or apply for
review of the affected orders on the ground that the courts had not
considered the required matters when making the affected orders. For
example, this preserves parties' rights to challenge the affected
orders on the grounds that the court did not make a finding as to
whether the time arrangements were reasonably practical. Subject to
the relevant court extending time for appeal or review where it has
expired, parties dissatisfied with an affected order may challenge the
affected order through an appeal or review or taking proceedings for
an order under Item 6.
15. Item 3(5) confirms that Item 3 does not affect the operation of
section 60CA of the Family Law Act in relation to an affected order.
The best interests of the child remain the paramount consideration.
Item 4: Effect of things done etc. under or in relation to rights and
liabilities
16. Item 4 provides for the effect of any acts done or omitted to be done
in relation to rights and liabilities created by Item 3 in relation to
affected orders.
17. Item 4(1) ensures that acts done (including civil enforcement action
under Division 13A of Part VII of the Family Law Act), or omitted to
be done, in relation to rights and liabilities created by Item 3 have
effect for the purpose of any laws in the same way as if they were
done or omitted to be done in relation to an order made under section
65D of the Family Law Act.
18. Item 4(2) prevents Item 4(1) from operating to validate or confirm a
conviction against an enforcement law. 'Enforcement law' is defined
in Item 4(3) as a Commonwealth law, other than one relating to
contempt of court, which sets out a consequence for a person if the
person contravenes or acts in a specified way while there is in force
an order made by a court exercising federal jurisdiction. An example
of such a law is section 65Y of the Family Law Act, providing for an
offence where a child subject to a parenting order is taken or sent
from Australia by a person who was a party to the proceedings in which
the order was made.
19. Items 4(2) and 4(3) could be detrimental to persons who have
contravened an affected order and who might otherwise be able to avoid
the consequences of contravention under Division 13A of Part VII of
the Family Law Act. These can include, for a serious contravention, a
fine up to 60 penalty units, a community service order or imprisonment
for up to 12 months. It would not be just or appropriate to allow
persons who have intentionally disregarded parenting orders to be able
to avoid these consequences. Item 4 ensures that an affected order
can be, and always could have been, relied upon for acts done, or
omitted to be done, relevant to parental responsibility, thereby
promoting certainty for post-separation parenting arrangements. The
parties to the proceedings in which an affected order was made will
have regarded the order as binding upon them, and the order will have
stated particulars of the consequences that may follow if a person
contravenes the order. In addition, some of the orders available
under this Division are intended to be remedial in nature (such as an
order that a person attend a post-separation parenting class). There
is a clear public benefit in ensuring that arrangements under
parenting orders are upheld.
Item 5: Circumstances in which Item 3 ceases to have effect
20. Item 5 provides that Item 3 ceases to have effect when an affected
order is replaced by a later order made by a court or Registrar on the
basis that the affected order was or might be invalid. Until that
later time the rights and liabilities created by Item 3 are the same
as if the required matters had been considered when the affected order
was made. It is not intended that Schedule 1 interfere with judicial
findings of invalidity made before its commencement.
Item 6: Powers in relation to declared rights and liabilities
21. Item 6 provides for the powers of the courts in relation to the rights
and liabilities created by Item 3.
22. Item 6(1) enables a court or Registrar to deal with a right or
liability created by Item 3 in relation to an affected order in the
same way as they could deal with a right or liability conferred,
imposed or affected by a parenting order made under section 65D of the
Family Law Act. It also ensures that a court or Registrar can, in the
circumstances specified in Item 6(2)(b), make an order to achieve any
other result that could have been achieved if the affected order had
been an order made under section 65D of that Act.
23. To avoid doubt, Item 6(3) clarifies that, subject to one exception,
the power under Item 6(1) to deal with a right or liability created by
Item 3 is subject to the same conditions and limitations as apply to
dealing with an order made under section 65D of the Family Law Act.
The exception, set out in Item 6(4), is that a court or Registrar need
not be satisfied, where the affected order was made in contested
proceedings, that there are circumstances, required under the Full
Court of the Family Court's decision in Rice and Asplund (1979) FLC 90-
725, justifying reconsideration of how the best interest of the child
should be best served before an order is made. The exception will
assist families in any case where the arrangements under an affected
order made by a court or Registrar were not reasonably practicable.
24. Items 6(5), (6) and (7) treat an order made under Item 6 dealing with
a right or liability created by Item 3 by:
. the Supreme Court of the Northern Territory;
. the Family Court of Western Australia;
. the Federal Magistrates Court;
. the Magistrates Court of Western Australia constituted by a Family Law
Magistrate of Western Australia; or
. a court of summary jurisdiction of State or Territory
as a decree of a court exercising jurisdiction under the Family Law Act for
the purpose of the appeal provisions of that Act.
25. It is not necessary to treat an order made under Item 6 by the Family
Court constituted otherwise than as a Full Court in this way, as
section 94 of the Family Law Act confers jurisdiction on the Full
Court of the Family Court of Australia to hear an appeal from a decree
of the Family Court exercising jurisdiction under that Act and also
exercising jurisdiction under any law.
26. Items 6(5) and (6) also treat a decree or decision of a Judge of the
Supreme Court of the Northern Territory or the Family Court of Western
Australia, a Federal Magistrate or a Family Law Magistrate of Western
Australia, rejecting an application that she or she disqualify himself
or herself from further hearing an application to deal with a right or
liability created by Item 3, as a decree or decision of that Judge or
magistrate exercising jurisdiction under the Family Law Act for the
purpose of the appeal provisions of that Act.
Item 7: Proceedings for contempt etc.
27. Item 7 further clarifies the power of courts in relation to the rights
and liabilities created under Item 3. It provides that, where a
person has interfered with a right conferred or affected by Item 3 or
failed to satisfy or comply with a liability imposed by Item 3 in
relation to an affected order made by the Federal Magistrates Court,
the Family Court of Western Australia, a court of summary jurisdiction
or a Registrar, the interference or failure can be dealt with in the
same manner as if it had occurred in relation to a right or liability
arising under a by a parenting order validly made under section 65D of
the Family Law Act. This, for example, would give the relevant court
the ability to deal with such interferences or failures under Division
13A of Part VII of the Family Law Act or as a contempt of court. The
further clarification is not necessary for affected orders made by the
Family Court of Australia which, as orders of a superior court of
record, remain valid until set aside.
Item 8: Evidence
28. Item 8 provides for the court record relating to an affected order to
be used as evidence of the existence and details of a person's rights
and liabilities created under Item 3.
Item 9: Schedule does not apply to certain orders
29. Item 9 ensures that Schedule 1 does not apply to any order declared or
held to be invalid by a court before the commencement of Schedule 1.
This preserves any finding of invalidity that was in place before the
Schedule commences.
Item 10: Jurisdiction of courts
30. Item 10 provides for the jurisdiction of courts with respect to
matters arising under Schedule 1.
31. Item 10(1) confers jurisdiction with respect to matters arising under
Schedule 1 on the Family Court of Australia, the Federal Magistrates
Court and the Supreme Court of the Northern Territory. Item 10(2)
invests federal jurisdiction with the Family Court of Western
Australia and State and Territory courts of summary jurisdiction with
respect to matters arising under Schedule 1.
32. A court only has jurisdiction with respect to matters arising under
Schedule 1 if it had jurisdiction with respect to an equivalent matter
arising under the Family Law Act, and subject to the same conditions
and limitations applying to it dealing with that equivalent matter
(Item 10(3)).
Schedule 2 - Amendment
33. Schedule 2 amends the Family Law Act to ensure that there is no
unnecessary complexity for families who can agree on parenting
arrangements for their children.
Item 1: Subsections 65DAA(1) and (2)
34. Item 1 amends subsection 65DAA(1) and (2) of the Family Law Act,
dealing with matters that the court must consider when a parenting
order provides (or is to provide) that a child's parents are to have
equal shared parental responsibility for the child, consequential on
new subsection 65DAA(6) inserted by Item 2.
Item 2: At the end of section 65DAA (after the note)
35. Item 2 inserts new subsections 65DAA(6) and (7) in the Family Law Act.
36. Where a parenting order provides or is to provide that the child's
parents are to have equal shared parental responsibility, paragraphs
(a) to (c) of subsection 65DAA(1) require the court to consider
whether the child spending equal time with both of the child's parents
is in the child's best interests and is reasonably practical and, if
it is, to consider making an order that the child spend equal time
with both parents.
37. If such an order is not made, paragraphs (c) to (e) of subsection
65DAA(2) require the court to consider whether the child spending
substantial and significant time with both of the child's parents is
in the child's best interests and is reasonably practical and, if it
is, to consider making an order that the child spend substantial and
significant time with both parents.
38. New subsection 65DAA(6) continues, prospectively, what is achieved by
the Bill for existing consent orders affected by the High Court's MRR
v GR decision. Where parenting orders that are made with the consent
of all the parties to proceedings provide for the parents to have
equal shared parental responsibility, the court will be able, but will
not be required to, consider the matters mentioned in subsections
65DAA(1) and (2) of the Family Law Act. The amendment ensures that
appropriate weight is given to parenting arrangements agreed by
parents. The best interests of the child remain the paramount
consideration for parenting orders (new subsection 65DAA(7)).
Item 3: Application of amendments
39. Item 3 provides that the amendments made by Schedule 2 apply to any
order made after the commencement of Item 3. This means that the
amendments to section 65DAA will apply to any applications for orders
that were made but not determined before that commencement, and any
applications for orders made on or after that commencement.