Issue No 40 Autumn/Winter 2006
Family Law Council Newsletter
Message from Council Chairperson
Professor Patrick Parkinson
The first half of 2006 has been a busy time for the Family Law Council. A major report on relocation has been prepared following a process of public consultation, three new references from the Attorney-General have been received (on collaborative law, family violence and arbitration) and two full Council meetings have been held, including one with a visit from the Attorney-General, the Hon Philip Ruddock MP. The message that has emerged from these meetings is that dynamic and positive changes are underway in family law.
Practitioners in Australia and overseas seem to be searching for innovative ways to improve the family law experience for children and parents. This is exemplified in the development of collaborative law. This process offers an alternative to the adversarial process for disputants, while allowing room for legal assistance. There are several models of collaborative law, however a common element to them all is the idea of a collaborative contract. This is a document signed by both parties and both lawyers which states that if discussions break down and an agreement cannot be reached, neither lawyer will be able to represent the parties in court. The idea is to create an incentive to reach a settled outcome, while at the same time freeing the negotiations from the shadow of the law. Without the threat of litigation, parties are able to negotiate in a more collaborative manner. Collaborative law has sparked much enthusiasm amongst lawyers around the country. It is hoped the Family Law Council’s reference will help to stimulate a national approach in relation to family law disputes, although Council is aware that collaborative law should have a broader focus than just family law.
Significant amendments to the Family Law Act 1975 have been enacted by the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006 on 10 May 2006. This Act introduces a number of important changes to the law, including some amendments stemming from recommendations made by the Family Law Council, as outlined in the previous newsletter (no. 39). The Shared Parental Responsibility Act is expected to commence operation on 1 July 2006.
Ms Jennifer Cooke from the Family Court of Australia has completed her term with Council, after joining as an observer in December 2000. Council wishes to extend its gratitude to Ms Cooke for her valuable contribution over the years. The new observer representing the Family Court is Ms Angela Filippello, to whom we extend a warm welcome.
Professor Patrick Parkinson
Relocation
The Council’s major focus in the first half of 2006 has been on the operation of the child paramountcy principle in relocation cases. Council released a discussion paper on 13 February 2006 and sought submissions from interested individuals and organisations by 7 April 2006. Over 40 submissions were received. Council has prepared a report to the Attorney-General on relocation, following consideration of the complex issues raised by the submissions. The report is available on Council’s website at <www.law.gov.au/flc>.
Collaborative law
In January 2006, the Family Law Council, in consultation with the Family Law Section of the Law Council of Australia and the National Centre of Collaborative Law, was asked to advise how the Government, in partnership with the legal profession, can assist in promoting collaborative law in Australia. A collaborative law working group has been set up and is presently developing best practice guidelines for comment from interest groups in June 2006.
The Attorney General’s terms of reference direct Council to give particular consideration to the following:
- What, if any, legislative changes need to be made to support the practice of collaborative law?
- What, if any, changes to court processes need to be made to assist collaborative law?
- What, if any, changes need to be made to the legal aid system to promote collaborative law?
- Whether it is desirable to have national guidelines for the practice of collaborative law and if so, how would these best be developed?
Family violence
On 28 February 2006 Council received a new reference on family violence and the Family Law Act. Council was asked to consider measures that the Commonwealth may initiate on its own or with the cooperation of State and Territory governments to:
- improve effective protection of persons who are or may be victims of family violence
- examine the effectiveness of legal and law enforcement mechanisms and their costs
- consider the degree to which Commonwealth, State and Territory agencies, individually or in cooperation, are able to deliver just and cost-effective outcomes
- assess the effectiveness of initiatives in public education prevention and rehabilitation, and
- examine the alleged incidence of false allegations of family violence.
Arbitration
Council received a new reference on arbitration on 26 May 2006. Council was asked to investigate arbitration of family law property and financial matters, taking into consideration the following:
- Is it possible, and if so is it desirable, for a court exercising jurisdiction under the
Family Law Act 1975 to have the ability to compulsorily require parties to proceedings to participate in arbitration of property and financial matters? - What, if any, legislative changes need to be made to support compulsory
arbitration? - What, if any, changes to court processes need to be made to assist compulsory
arbitration? - What, if any, funding might be required to support voluntary and compulsory
arbitration? - What, if any, changes to court processes or other changes could be made to
promote voluntary arbitration.
Improving post-parenting order processes
Council is presently preparing a report in response to terms of reference on improving post-parenting order processes. The Council will consider, amongst other things, how family law processes can better deal with the need to vary parenting orders from time to time as family circumstances change.
Statistical snapshot 2003–05
Council is drafting its next bi-annual statistical report on various aspects of the Australian family law system. The report will draw on data sourced from the Family Court of Australia, the Family Court of Western Australia, the Federal Magistrates Court and the Australian Bureau of Statistics.
Council’s meeting dates and themes for 2006
16–17 February 2006 Adelaide, South Australia
Council met in Adelaide on 16–17 February 2006. The theme of the meeting was the de facto property reference. Council invited a number of visitors to the meeting, including judicial officers, legal practitioners and a representative from the Attorney-General’s Department to discuss the proposed de facto property legislation and other matters. Discussions were also held with visitors from the Family Court and Federal Magistrates Court on their Combined Registry Project (to streamline case management in those courts), and with counselling organisations who gave their impressions of the proposed new Family Relationship Centres.
4–5 May 2006 Melbourne, Victoria
The theme of the May meeting was child-related proceedings. The Attorney-General, the Hon Philip Ruddock MP, met with Council and discussed some of the reforms to family law that are underway. Representatives from the judiciary, legal profession and court staff also visited the meeting to discuss a number of issues including the Children’s Cases Program (CCP), collaborative law and the current reforms to the Family Law Act. Dr Jennifer McIntosh, a psychologist and researcher who is evaluating the Sydney pilot of CCP and its impact on families, presented some preliminary findings to Council.
Availability of Council publications
Council documents which have been publicly released can be found at: <www.law.gov.au/flc>. Council would like to advise that, due to budgetary constraints, printed copies may not always be available on request.
Please address all correspondence and inquiries concerning the Family Law Council News to:
The Director of Research
Family Law Council
Robert Garran Offices
National Circuit
BARTON ACT 2600
Telephone: (02) 6234 4829
Fax: (02) 6234 4811
E-mail: flc@ag.gov.au
The Family Law Council News is a bi-annual newsheet which aims at informing persons and organisations about the work of the Family Law Council. The News is produced under the auspices of the Family Law Council but the views expressed are those of the writer or the Editor and not necessarily of any of its members or members of its committees. The purpose of the News is to provide general information and not legal advice. Every care is taken in the preparation of the News but readers are advised to check the detail of any legislation, cases or other material in it. All inquiries about the Family Law Council News should be directed to the Director of Research, see contact details above.
Editor: Anita Mackay
Distribution: Luke Allard
