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Law - world - Australia - Standing commitee on shared
residence
The following document has been made available on the Standing
Committee on Family and Community Affairs website:
http://www.aph.gov.au/house/committee/fca/index.htm
specifically...
Media Releases 29 July 2004:
Prime Minister - Reforms to the Family Law System
and Framework Statement on Reforms to the Family Law System
<http://www.aph.gov.au/house/committee/fca/childcustody/media/mr29070
4att.pdf>
In 2003 the House of Representatives Standing
Committee on Family and Community Affairs conducted a wide-ranging
inquiry into child custody arrangements in the event of family
separation. The 1700 submissions that the Committee received
demonstrate the significant community concerns about these
issues. The government is grateful for the hard work of the
Committee on what was a very demanding task. The Committee's
report, Every Picture Tells A Story, tabled last December,
had a strong focus on the importance of reducing conflict
between separated parents and on separated fathers having
greater
involvement with their children. It emphasised the need for
practical steps to reduce parenting disputes.
The government agrees with the Committee on
the importance of these issues and on providing opportunities
for families to resolve disputes without going to court. It
is also important to provide assistance to families to avoid
separation by ensuring they have opportunities for pre-marriage
education and help in dealing
with relationship difficulties along the way. The government
proposes to undertake major reforms of the family law system
to provide families with better ways to resolve relationship
disputes and to reduce the emotional costs to families and
children of conflict and separation.
The Committee recommended that a single entry
point into the family law system be established to provide
information, case assessment, screening and referral of separating
parents to mediation and counselling services. The Committee
also recommended the establishment of a Families Tribunal
to attempt to conciliate
disputes and to make decisions in a range of cases.The government
considers that the Committee's objectives can be addressed
through a major change to the family law system focusing on
resolving disputes outside the courts. The government proposes
to establish new Family Relationship Centres across the country
to provide information, advice and dispute resolution to help
parents
reach agreement. This new national service will be a visible
entry point to the family law system, providing case assessment,
referrals and practical assistance to parents, including help
in developing a parenting plan. Centres will screen cases
for violence or child abuse and refer such cases to support
services and direct to the courts where appropriate.
While the Committee envisaged that the single
entry point services would be attached to a government agency,
the government considers hat the community sector is better
placed to provide these services. Information, advice and
the first three hours of dispute resolution sessions will
be free.
The new Family Relationship Centres will overcome
the limitations associated with the Committee's Families Tribunal
proposal. Where the Tribunal would have only been able to
make determinations in a relatively small proportion of cases,
and would have assisted only those couples wishing to proceed
to court, the centres will offer practical, early intervention
assistance which will be available to
all separated families. Through the new centres, couples will
be able to access dispute resolution at a much earlier stage
in their separation, before conflict has escalated and disputes
have become entrenched.
A major cause of conflict between separating
parents is the breach of parenting agreements or court orders.
The centres will have an important role in helping to deal
with such breaches rather than relying on enforcement orders
from the courts which often do not resolve the problem. Where
a parent contacts a Family Relationship Centre over a breach
of an agreement or order, a parenting adviser would contact
the other parent and, where practical, set up a meeting with
both parents to try to resolve the issue. (In some cases the
level of conflict might mean the adviser will need to talk
to the parents separately or by telephone only.) Where the
efforts of the adviser do not resolve the dispute, the parents
could be referred to a service such as the Contact Orders
Program which has had significant success in working with
families experiencing high conflict that is affecting parenting
arrangements. The government proposes to increase significantly
the resources of these programs. The Family Relationship Centres
will not just be for separating parents. They will provide
information and referral to pre-marriage education services
to give couples a sound start to marriage. For
families who have not separated but who are experiencing relationship
difficulties, the centres will provide information and referral
to services that can help to prevent family breakdown. In
many cases such services will be available on the same premises.
The government proposes to undertake a tender process to establish
65 Family Relationship Centres around Australia. Like the
Job
Network, they will be run by a variety of non-government organisations
but will be badged as a national service and will provide
similar help to families across the country. It is likely
that service providers such as Centacare, Relationships Australia
and members of Family Services Australia, such as Anglicare,
will be
among the organisations that deliver these services. The network
of centres will be supported by a free telephone advice line
for those who are unable to access a Family Relationship Centre
in person. An implementation review of the centres will be
undertaken after the first year.
One of the objectives of the Committee in recommending
the Tribunal was to make family law hearings less adversarial.
As part of the new family law process, the government will
propose changes to the Family Law Act 1975 to make family
law cases relating to children less adversarial and less likely
to escalate conflict.
Parents would be able to consult a lawyer if
they wished, however, given the Committee's preference for
keeping lawyers out of pre- court processes as a means to
reduce pressure to adopt a win/lose approach, lawyers would
not be allowed to participate in the individual or joint sessions
with a parenting adviser. However, parties could bring a non-legal
companion if considered appropriate
by the mediator.
The government will also establish a new combined
registry for family law matters for the Family Court of Australia
and the Federal Magistrates Court. The combined registry will
help people navigate the court system without the need for
a lawyer. It will provide information about the family law
courts and channel cases to the appropriate court. Where people
come to the courts without
attempting dispute resolution first ? and the case does not
involve violence or child abuse ? the registry will refer
them to a Family Relationship Centre or other appropriate
dispute resolution service to try to resolve the matter outside
the courts.
The Committee rejected the idea that equal shared
custody should be a starting point under the Family Law Act.
However, it did recommend that equal shared parental responsibility
be a starting point in most cases. That means parents share
the key decisions in a child's life, regardless of how much
time the child spends with each parent. The government proposes
to amend the objects provisions of the Family Law Act to refer
to the need for both parents to have a
meaningful involvement in their children's lives and for children
to have a right to spend time on a regular basis with both
parents. The government also proposes to make equal shared
parental responsibility the starting point except in cases
involving violence, child abuse and entrenched conflict. Parents
will still be able to put their case for a different arrangement
- and the courts will continue to consider the best interests
of the child as the most important question - but equal shared
parental responsibility will be the starting presumption in
most cases. In many cases the Courts will have to consider
equal parenting time if both parents are seeking to have the
child living with them (although not where violence, child
abuse or entrenched conflict is involved). The government
will also consider implementing useful family law initiatives
from other parts of the
world.
To better promote shared parenting, the government
proposes that counsellors, mediators and legal advisers will
be required to inform parents about jointly developing a parenting
plan.
When advising on parenting plans they will need
to discuss equal shared parenting time as a starting point
where practicable. The Committee also recommended that, except
in certain circumstances, parents be required to attempt alternative
forms of dispute resolution such as counselling, mediation
or conciliation before they can go to court over a parenting
matter. The government agrees. Parents will need to attend
a dispute resolution process
aimed at completing a parenting plan, either at a Family Relationship
Centre or elsewhere, before they will be able to file a parenting
matter in the courts. Cases involving violence or child abuse
will not have to meet this requirement.
In cases where couples are in complete agreement
regarding custody and related matters, all that will be required
is a brief attendance at a Family Relationship Centre to formalise
the details of a parenting plan. Proceedings can then be commenced.
The Committee's report highlighted the importance of services
that can assist parents who cannot achieve and sustain shared
parenting on their own. It recommended the government provide
increased resources for family services.
The government agrees. The new approach will
require significant expansion of pre-marriage education, early
intervention services for families, dispute resolution counselling,
mediation and similar services. Some of these resources will
be available for the Family Relationship Centres to provide
further services. The government will also be expanding the
successful Contact Orders Program, children's contact services,
Mensline and the Men and Family Relationships
Program.
Grandparents play an essential role in children's
lives but can feel cut off and helpless when families separate.
Many have responsibility for caring for their grandchildren
when the parents are unable to do so. Grandparents already
have the right to apply for a residence or contact order under
the Family Law Act but often are not aware of their rights
or simply want to have a role in their
grandchildren's lives without taking the matter to court.
The government proposes to change the Family Law Act to highlight
the role of grandparents and to ensure the role of grandparents
is taken into account by the courts. Through a community education
campaign, grandparents will be encouraged to use the Family
Relationship Centres, dispute resolution services and the
new national advice line to obtain information and assistance.
The government also proposes additional legal aid resources
in recognition of the increased demand as a result of more
grandparents exercising their rights. The government is working
with the Council of Australian Governments (COAG) to develop
a better coordinated
approach across jurisdictions to support grandparents who
are providing full-time care to their grandchildren. COAG
has commissioned the Community and Disability Services Ministers
Conference to report to COAG this year on the nature and extent
of the needs of grandparent carers and what measures could
be taken
to address them.
The committee recommended a number of changes to child support
legislation and a detailed re-evaluation of the Child Support
Scheme by a Taskforce. The government recognises that there
is considerable interest in the scheme and a strongly held
belief in parts of the community that the current system is
inequitable. The government is taking immediate steps to establish
a Child Support Taskforce to report back by March 2005 on
the recommendations of the Committee. This Taskforce could
also consider whether there is scope for the
Child Support System to encourage couples to enter parenting
plans and access the services of the Family Relationship Centres.
The Committee recommended a wide-ranging, long
term and multi-level community education strategy to support
legislative changes and to promote shared parenting.
The government will implement on-going community
education to explain the changes to the law, encourage a non-adversarial
approach to family separation and to encourage parents to
get early help. It will include information on the role of
grandparents, as recommended by the Committee.
The government is committed to improving
outcomes for separating families and ensuring that the focus
is on the best interests of the children involved. These proposed
reforms will significantly change the family law system and
enable many more families to resolve disputes outside the
courts. However such far-reaching changes need to be implemented
carefully and through consultation with the
community. For this reason the government will be releasing
a discussion paper on the implementation of the proposed reforms
and seeking input from the community on how they should be
taken forward.
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