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2004 - 2005 - 2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY) BILL
2005
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of the Government
(Circulated by authority of the Attorney-General,
the Honourable Philip Ruddock MP)
FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY) BILL
2005
OUTLINE
This Bill amends the Family Law Act 1975 to implement a significant number of the
recommendations of the report of the House of Representatives Standing Committee on
Family and Community Affairs inquiry into child custody arrangements in the event of
family separation, Every Picture Tells a Story. The Bill also implements most of the
recommendations made by the House of Representatives Standing Committee on Legal
and Constitutional Affairs in its report on the exposure draft of the Bill.
The Bill is part of the Government's bold new reform agenda in family law.
The Government amendments clarify the definition of family violence; amend the
application provisions to allow provisions of the Bill to apply to orders made after
commencement even where the application was made prior to commencement; and
clarify that the Bill is not intended to operate so as to allow previously resolved parenting
orders to be reconsidered purely on the basis of the changes to the legislation.
FINANCIAL IMPACT STATEMENT
This Government amendment will have no financial impact.
NOTES ON CLAUSES
Amendment 1: Schedule 1, item 3 (definition of family violence)
1. Amendment 1 inserts a note under the definition of family violence in section 4 of
the Act. This section is the general definitions section of the Act. The Bill
amends the current definition of family violence to implement recommendation 9
of the House of Representatives Legal and Constitutional Affairs Committee
Report on an exposure draft of this Bill that the definition should include an
objective element. A requirement of reasonableness has been added to the
definition such that the fear or apprehension of violence must be reasonable.
There is no requirement for reasonableness for violence that has actually
occurred.
2. The note added by this Government amendment clarifies that in assessing the
`reasonableness' of a person's fear, the test is whether a reasonable person in the
same circumstances would fear for, or be apprehensive about, his or her personal
wellbeing or safety. This Government amendment responds to
Recommendation 5 of the report of the Senate Legal and Constitutional
Legislation Committee (the Senate Committee) and clarifies the Government's
intention that, in applying the test, the court is to consider the person's individual
circumstances. This will ensure that in circumstances where there has been a
history of violence, the assessment of reasonableness will be conducted in light of
that history.
Amendment 2: Schedule 1, item 43 (application)
3. Government amendments 2 - 4 amend the application provisions in item 43 of
Schedule 1. The provisions in Schedule 1 support and promote shared parenting
and change the way courts are to approach the making of parenting orders.
Currently, the Bill provides that a number of key provisions in Schedule 1 will
only apply to parenting orders made in proceedings initiated on or after
commencement. This was due to the Government's concerns at the cost
implications for current litigants should the provisions apply to current
applications before the court. Government amendments 2 - 4 provide for these
provisions to apply to all parenting orders made on or after commencement,
regardless of whether the proceedings were initiated prior to commencement or
not. The amendments respond to recommendation 10 of the Senate Committee's
report and aim to reduce the length of time that there will two sets of laws
applying to family law proceedings. The period between passage of the Bill and
commencement by proclamation should mean that existing litigants will have
appropriate notice of the changes to the litigation prior to their commencement.
The Government therefore considers that these Government amendments strike
the appropriate balance between ensuring uniformity and not unduly
disadvantaging existing litigants.
4. Amendment 2 replaces subitems (1) and (2). New subitem (1) provides that new
section 60CC, which sets out the factors the court must consider in determining
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the best interests of the child, will apply to orders made on or after
commencement. This subitem refers broadly to orders, rather than specifically to
parenting orders, as the consideration of a child's best interests is relevant to other
orders made by the court.
5. New subitem (2) provides that items 13, 29 and 30 which provide for the
application of the presumption of equal shared parental responsibility will apply
to parenting orders made on or after commencement.
Amendment 3: Schedule 1, item 43 (application)
6. As noted above, Government amendments 2 - 4 amend the application provisions
for Schedule 1 which is the schedule that supports and promotes shared parenting
and changes the way courts are to approach the making of parenting orders.
7. Government amendment 3 amends subitem (6) of the application provisions in
item 43 of Schedule 1. New subitem (6) provides that the amendment made by
item 22, which relates to what a parenting order may deal with, applies to
parenting orders made on or after commencement.
Amendment 4: Schedule 1, item 43 (application)
8. Government amendment 4 amends subitem (8) of the application provisions in
item 43 of Schedule 1. New subitem (8) provides that sections 65DAA, 65DAB,
65DAC and 65DAE inserted by item 31 of the Bill apply to parenting orders
made on or after commencement. These provisions require the court to consider
equal time arrangements in certain circumstances and to have regard to
subsequent parenting plans; and set out the effect of parenting orders that provide
for parental responsibility.
Amendment 5: Amendment to Schedule 1, Part 2 - new item 44 (Grounds for
discharging or varying parenting orders)
9. Government amendment 5 inserts a new item 44 into Part 2 of Schedule 1. Part 2
of Schedule 1 sets out the application arrangements for the provisions in Part 1 of
Schedule 1. The provisions in Part 1 of Schedule 1 support and promote shared
parenting and encourage people to reach agreements about parenting, rather than
using the court system. In particular, the provisions change the way courts are to
approach the making of parenting orders. New item 44 clarifies that the changes
introduced in Part 1 of Schedule 1 are not intended to operate so as to allow
previously resolved parenting orders to be reconsidered purely on the basis of the
changes to the legislation.
10. The case of Rice and Asplund (1979) FLC 90-725 limits the court's capacity to
rehear matters to two kinds of cases: those where there is a change in the
circumstances of the parties or where some new factor has arisen which would
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justify such a serious step; and those where there is some factor which was not
disclosed at the previous hearing which would have been material.
11. The Government amendment puts beyond doubt that the changes to the Family
Law Act 1975 made by this Bill, do not constitute such a significant change in
circumstances or new factor so as to meet the test of Rice v Asplund in the first
kind of cases. The changes to the legislation are not relevant to the second kind
of cases as the legislation would not have been in existence to be disclosed at the
time of the previous hearing of the parenting order.
12. The note following new item 44 directs readers to the principle in Rice v
Asplund. This note is to assist readers, particularly self-represented litigants,
understand how new item 44 links to the common law.
13. The Government amendment addresses concerns raised by the Family Court of
Australia about the potential impact on judicial resources, and on hearing times,
of increased litigation following commencement of the legislation, caused by
people seeking to have previously resolved matters reconsidered purely on the
basis of the changes to the law. The Government also considers that it is
generally not in the best interests of children to have repeated applications
concerning them before the court.
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