PART 3 Response to the committee’s recommendations

A rebuttable presumption

Recommendation 1

The committee recommends that Part VII of theFamily Law Act 1975be amended to create a clear presumption, that can be rebutted, in favour of equal shared parental responsibility, as the first tier in post separation decision making.

The government agrees with this recommendation and will introduce amendments to Part VII of the Act to require the court to apply a presumption (or starting point) of joint parental responsibility. Joint parental responsibility will mean that parents will continue to share the key decisions in a child’s life after separation, regardless of how much time the child spends with each parent. While the changes to the law will mean that a judge or magistrate will generally start with the presumption that the parents will have joint parental responsibility, one or both parents can submit that this is not appropriate in a particular case. The best interests of the child will remain the most important factor to be taken into account. The primary factors in determining the best interests of the child will be the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm.

Recommendation 2

The committee recommends that Part VII of theFamily Law Act 1975be amended to create a clear presumption against shared parental responsibility with respect to cases where there is entrenched conflict, family violence, substance abuse or established child abuse, including sexual abuse.

The government agrees with this recommendation in relation to cases involving violence or child abuse. While the amendments will not introduce a separate presumption against joint parental responsibility in these cases, the courts will be required not to apply the presumption in favour of joint parental responsibility where there is evidence of violence or child abuse.

The government has decided not to create a presumption against joint parental responsibility in cases involving substance abuse or entrenched conflict.

The government considers that, in relation to substance abuse, a better approach would be for the courts to take into account the effect of substance abuse on parental behaviour in deciding whether joint parental responsibility is in the best interests of the child.

In relation to entrenched conflict, it could be argued that any case that reaches a final court hearing involves entrenched conflict. Making entrenched conflict a ground for applying a presumption against joint parental responsibility could mean the courts would rarely be able to apply the proposed new presumption in favour of joint parental responsibility. The government considers that the presumption of joint parental responsibility should apply, noting that the impact of conflict and the ability of parents to communicate over parenting arrangements are matters for the courts to consider when deciding any particular case.

Recommendation 3

The committee recommends that Part VII of theFamily Law Act 1975be amended to:

• provide that the object of Part VII is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents are given the opportunity for meaningful involvement in their children’s lives to the maximum extent consistent with the best interests of the child;
• define ‘shared parental responsibility’ as involving a requirement that parents consult with one another before making decisions about major issues relevant to the care, welfare and development of children, including but not confined to education – present and future, religious and cultural upbringing, health, change of surname and usual place of residence. This should be in the form of a parenting plan;
• clarify that each parent may exercise parental responsibility in relation to the day-to-day care of the child when the child is actually in his or her care subject to any orders of the court/tribunal necessary to protect the child and without the duty to consult with the other parent;
• in the event of matters proceeding to court/tribunal then specific orders should be made to each parent about the way in which parental responsibility is to be shared where it is in the best interests of the child to do so; and
• in the event of matters proceeding require the court/tribunal, to make orders concerning the allocation of parental responsibility between the parents or others who have parental responsibility when requested to do so by one or both parents.

The government agrees with this recommendation and will introduce amendments to the Act to implement the changes proposed by the committee. The amendments should be child-focused and so will refer to the need to ensure 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 government will also make an additional change to the objects of the Act to include the preservation of a child’s right to safety, in keeping with the committee’s conclusion at paragraph 2.29.

Recommendation 4

The committee recommends that Part VII of theFamily Law Act 1975be further amended to remove the language of ‘residence’ and ‘contact’ in making orders between the parents and replace it with family friendly terms such as ‘parenting time’.

The government agrees with this recommendation. It will remove the terms ‘residence’ and ‘contact’ from the Family Law Act, but will use the concept of ‘parenting orders’ rather than ‘parenting time’. It considers that this is a simpler way to ensure that the Act focuses on the relationship that parents have with their children rather than the time a child spends with each parent.

Recommendation 5

The committee recommends that Part VII of theFamily Law Act 1975be further amended to:

• require mediators, counsellors, and legal advisers to assist parents for whom the presumption of shared parenting responsibility is applicable, develop a parenting plan;
• require courts/tribunal to consider the terms of any parenting plan in making decisions about the implementation of parental responsibility in disputed cases;
• require mediators, counsellors, and legal advisers to assist parents for whom the presumption of shared parenting responsibility is applicable, to first consider a starting point of equal time where practicable; and
• require courts/tribunal to first consider substantially shared parenting time when making orders in cases where each parent wishes to be the primary carer.

The government agrees with this recommendation in principle. Changes to the Act will require mediators, counsellors, and legal advisers to provide information about what a parenting plan is, the possible content of such a plan and appropriate organisations or individuals who can assist in the development of parenting plans. Where they are providing advice to parents about parenting plans, they would also be required to inform parents that they could consider substantially sharing parenting time as an option where it is in the best interests of the child and practicable.

A judge or magistrate would be required take into account the terms of the most recent parenting plan if the parents subsequently end up in court over a parenting issue.

Changes to the Act will also require courts to first consider substantially shared parenting time when making orders in cases where there is joint parental responsibility and each parent wishes to be the primary carer. Whether substantially shared parenting time is ordered will depend on the best interests of the child.

Recommendation 6

The committee recommends that the Commonwealth government develop a wide ranging, long term and multi level strategy for community education and family support to accompany legislative change and to promote positive shared parenting after separation, as was recommended by the Family Law Pathways Advisory Group.

The government agrees that a community education campaign is necessary to accompany the legislative changes. The 2005-06 Budget contains $5.7 million for a community education campaign. Family Relationship Centres will also have an important role in promoting and educating the community on positive shared parenting.

In relation to family support, the government is establishing the new network of Family Relationship Centres and a range of other new and expanded services to support separated parents to achieve positive shared parenting where possible.

Facilitating shared parenting

Recommendation 7

The committee recommends that in support of the legislative presumption for shared parenting recommended in Chapter 2 the government review the community’s current access to services which can assist those who cannot achieve and sustain shared parenting on their own to:

• develop the skills to communicate effectively around their children’s needs and to manage cooperative parenting;
• enable them to resolve their on-going conflict and develop a long term ability to share their parenting responsibilities in the interest of their children; and
• include the perspective and needs of their children in their decision making, with and without assistance from the family law system.

The government agrees with this recommendation. Establishing the new network of Family Relationships Centres will be central to providing parents with this assistance. In addition, the government has considered what other services can help parents achieve and sustain shared parenting.

The government is quadrupling the size of the Contact Orders Program from 5 to 20 services at a cost of $23.3 million over four years. The program is highly effective in improving parents’ ability to resolve conflict and to focus on and communicate about their children’s needs. The government is also expanding the Men and Family Relationship Program, family relationships education, counselling and skills services and a range of dispute resolution services to provide a range of help for parents to improve their parenting and communication skills and resolve disputes. These measures will cost over $87 million over four years.

Recommendation 8

The committee recommends in particular the significant expansion of the contact orders program beyond the level addressed in the government’s Response to the Pathways Report, to enable separated families in long term conflict to have access to like services in all states and territories and in regional areas. (As a minimum there should be one of these services in each location where there is a Family Court registry.)

The government agrees with this recommendation.

Fifteen new services will be provided under the Contact Orders Program at a cost of $23.3 million over four years. This will bring to 20 the total number of services across the country. It is also expected that the Family Relationship Centres will refer families to this expanded program when entrenched conflict is causing agreements on children’s contact to break down. This is a better alternative than that currently available where parents have no option but to go to court over breaches of contact orders.

Recommendation 9

The committee recommends that the Family Law Act 1975be amended to require separating parents to undertake mediation or other forms of dispute resolution before they are able to make an application to a court/tribunal for a parenting order, except when issues of entrenched conflict, family violence, substance abuse or serious child abuse, including sexual abuse, require direct access to courts/tribunal.

The government agrees with this recommendation (with some changes to the exceptions).

The government will introduce amendments to the Act to provide that a parent who wishes to take a parenting dispute to court will be required to file a certificate by an accredited dispute resolution practitioner (such as a mediator) to show that:

• they have attended a dispute resolution process with the other parent aimed at completing a parenting plan, or
• they attempted to do so but the other parent refused or failed to attend.

Exceptions to this requirement will be cases involving violence or child abuse, urgent matters, situations where the parents lack the capacity to participate in dispute resolution, and cases involving flagrant breaches of existing court orders.

Where a case is exempt from this requirement because it involves violence or child abuse, there will still be a requirement for the person wanting to take the matter to court to obtain information from a family counsellor or dispute resolution practitioner about options and support services available.

The government does not agree that cases involving substance abuse and entrenched conflict should also be exempted from the compulsory dispute resolution requirement. In the government’s views, these exceptions could cover too many cases where dispute resolution may in fact be successful.

Dispute resolution services meeting the new requirement will be provided by the new Family Relationship Centres and also by accredited practitioners in other services or in private practice. Accreditation standards will be developed under the Act.

As well as establishing the new Family Relationship Centres, the government will expand community-based dispute resolution services by 25 per cent to help meet the demand for these services, at an additional cost of $13.4 million over four years

As the new Family Relationship Centres and other services will be rolled out over three years, the compulsory dispute resolution provision will be phased in over the same period.

Recommendation 10

The committee recommends that the funding for the Family Relationships Services Program be increased following a review with respect to the appropriate targeting and adequacy of resources for the service types which will provide the most benefit to families’ positive family relationships, before during and after separation. In this review the committee recommends that consideration be given particularly to a significant further expansion of children’s contact services nationally.

The government agrees with this recommendation.

In 2003-2004, the Department of Family and Community Services, in collaboration with the Attorney-General's Department, undertook a review of Family Relationships Services Program. The review has provided information about the community’s access to services. This has been taken into account in the development of the government’s response to the committee’s report.

When announcing the government’s proposed package of reforms on 29 July 2004, the Prime Minister also announced an immediate 30 per cent increase in funding to services under the Family Relationships Services Program for the 2004-05 financial year. The 2005-06 Budget includes funding of $63.1 million over four years to maintain this 30 per cent increase.

The 2005-06 Budget provides other funding for new and existing services, which aim to assist families before during and after separation. In addition to the establishment of the new network of Family Relationship Centres and expansion of the Contact Orders Program (see response to recommendation 8 above), the government will:

• expand prevention and early intervention services including men’s services, pre marriage and family relationship education, counselling and family skills training, and specialised family violence services, at a cost of $61.6 million over four years;
• maintain and enhance funding for Men’s Line Australia at a cost of $12.4million over four years; and
• establish 30 new children’s contact services at a cost of $17.0 million over four years.

A new family law process

Recommendation 11

The committee recommends that a shop front single entry point into the broader family law system be established attached to an existing Commonwealth body with national geographic spread and infrastructure, with the following functions:

• provision of information about shared parenting, the impact of conflict on children and dispute resolution options;
• case assessment and screening by appropriately trained and qualified staff;
• power to request attendance of both parties at a case assessment process; and
• referral to external providers of mediation and counselling services with programs suitable to the needs of the family’s dispute including assistance in the development of a parenting plan.

The government agrees with the need for a new entry point to the family law system outside the courts. It will implement the thrust of this recommendation through the establishment of the new network of Family Relationship Centres. As well as the information, case assessment, screening and referral recommended by the committee, the centres will also provide practical advice and assistance to parents, including help in developing a parenting plan. The centres themselves will provide dispute resolution and will also refer parents to other mediation, counselling or specialist services they may need. Information, advice and referral services will be free. The first three hours of dispute resolution will also be free. There will be flexibility for parents who need more time to help them reach agreement. They will be able to continue either at the centre or at a dispute resolution service that best suits their needs. Like existing mediation and counselling services funded by the government, some parents will get additional services for free and others who can afford it, will pay for these services.

Rather than being attached to a government agency, the government considers that the non-government sector is better placed to provide these services. The Family Relationship Centres will be run by a variety of non-government organisations but will be a national service network with nationally consistent goals and standards. It will be supported by a national telephone advice line and website.

Recommendation 12

The committee recommends that the Commonwealth government establish a national, statute based, Families Tribunal with power to decide disputes about shared parenting responsibility (as described in Chapter 2) with respect to future parenting arrangements that are in the best interests of the child/ren, and property matters by agreement of the parents. The Families Tribunal should have the following essential features:

• It should be child inclusive, non adversarial, with simple procedures that respect the rules of natural justice.
• Members of the Families Tribunal should be appointed from professionals practising in the family relationships area.
• The Tribunal should first attempt to conciliate the dispute.
• A hearing on the dispute should be conducted by a panel of three members comprising a mediator, a child psychologist or other professional able to address the child’s perspective and a legally qualified member.
• Legal counsel, interpreters or other experts should be involved in proceedings at the sole discretion of the Tribunal. Experts should be drawn from an accredited panel maintained by the Tribunal.

The government does not agree with this recommendation. It considers the committee’s objectives can be better met through the new network of Family Relationship Centres and through changes to court processes.

Through the new centres, separated couples will be able to access a non-adversarial way of resolving disputes at a much earlier stage in their separation, before conflict has escalated and disputes have become entrenched. For those families who do need to go to court, the government will introduce less adversarial court processes for parenting matters.

Recommendation 13

The Committee recommends that all processes, services and decision-making agencies in the system have as a priority built in opportunities for appropriate inclusion of children in the decisions that affect them.

The government agrees with this recommendation in principle. It will continue to support initiatives that ensure that the focus of the family law system is on the best interests of the children involved, and that enable services and decision-making agencies to directly involve children in decision making where appropriate.

The government has already provided training for lawyers and dispute resolution professionals in child-focussed practice through the Children in Focus and Changing the Face of Practice programs.

Community services funded under the Family Relationships Service Program will continue to provide innovative child focussed practice and include children where appropriate. The government has also provided funding for research into child-inclusive mediation processes.

In relation to court processes for parenting matters, the less adversarial court processes outlined in the response to recommendation 12 above will also include opportunities for the appropriate inclusion of children.

Recommendation 14

The committee recommends