Issue No 21 January 1998
Family Law Council Newsletter
IN THIS ISSUE
- Parental Child Abduction - Council opposes criminalisation
- Child and Family Services - Discussion Paper released
- Change of address - Council's Secretariat
- Council's submission on PDR services in family law
- Council delegation visits Wellington NZ
- Annual Report 1996-97 tabled in Parliament
- Report on November 1997 Council meeting
- Update on Council projects
PARENTAL CHILD ABDUCTION - COUNCIL OPPOSES CRIMINALISATION
In September 1996 the Attorney-General asked the Council to consider, among other things, whether parental child abduction should be made a criminal offence. Council released a discussion paper for public comment in February 1997 and received 29 submissions.
In its subsequent report to the Attorney-General Parental Child Abduction (January 1997) Council recommended that parental child abduction should not be criminalised, but that alternatives to criminalisation should be introduced.
Council noted that many "abductions" were thought to be one parent leaving the family home, often to escape violence, and taking the children. Council's report recommends that courts be given a wide power to make reparation, from the property of persons responsible for abducting children, to the taxpayer. The report also recommends that means be examined by which the Australian Federal Police (AFP) can arrange for requests from non-police sources to locate children abducted from Australia and that consideration be given to how more resources can be made available to the AFP. At present the AFP only acts on such requests from other police forces.
Please address all correspondence and inquiries concerning the Family Law Council News to:
The Director of Research
Family Law Council
50 Blackall Street
BARTON ACT 2600 Telephone: (06) 250 6375. Fax: (06) 250 5917
CHILD AND FAMILY SERVICES - DISCUSSION PAPER RELEASED
Submissions are called in response to Council's Child and Family Services Discussion Paper No 1 (DP1). Stage 1 of the project is to develop a set of principles and standards. In Stage 2 of the project the principles and standards for the care, support and protection of children developed in Stage 1 will be used to examine current practices. The 3rd and final stage will involve the development of options for reform.
DP1 proposes principles, or values, which inform the interpretation and application of the law, practices and procedures relating to the care, support and protection of children and support for their families. In identifying those principles Council looked at what has been done in this area within Australia and overseas. Having proposed the principles, DP1 then develops a set of minimum standards designed to carry those principles into practice. DP1 then sets up a framework for measuring performance against the proposed standards.
Council is seeking views on its proposed principles, minimum standards and performance measures.
After public consultation Council expects to have a set of minimum standards against which it can assess the system in Australia for the care, support and protection of children. This system crosses the various levels of government in Australia, but Council's main focus will be on the interaction between the Family Law Act and State and Territory Child and Family Services Legislation.
CHANGE OF ADDRESS - COUNCIL'S SECRETARIAT
Council's Secretariat moved from 50 Blackall Street to National Circuit, Barton at the end of November 1997. The new address is:
1st Floor, South Building
Robert Garran Offices
National Circuit
BARTON ACT 2600
Telephone and fax numbers remain unchanged. Mail sent to the old address is currently being redirected to us.
COUNCIL'S SUBMISSION ON PDR SERVICES IN FAMILY LAW
Council put considerable resources into its submission on the Attorney-General's Department's discussion paper (DP) Delivery of Primary Dispute Resolution Services in Family Law (1997). The submission was sent to the Attorney-General in early December 1997.
In its submission Council made the following points:
- Any changes to the present system should have the primary objective of fairness and improved service delivery for the client.
- Divorce is a process involving significant change in people's lives and there needs to be overall management of that whole process at an individual level.
- The issue of the court's capacity to purchase the primary dispute resolution services (PDR) it needs is of pivotal importance and there is a need to closely examine the issue.
- Council's submission discusses in some detail the advantages and disadvantages of geographical or administrative separation of the court and the PDR services it uses. However, Council does not agree with the assumption made in the DP that it is necessary to physically separate the court and PDR services in order to ensure that PDR services are fully used by Family Court applicants. In Council's view the court's policy of judicial determination as a last resort is already ensuring that PDR services are fully used where this is appropriate.
- While the Family Court is a dispute resolution body, there are also strong therapeutic elements to the legislation and the bulk of cases coming before the court are resolved by, or agreements are reached following, use of PDR processes. Council agrees with the comment of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act (1992) that the Family Court, as well as being a court of litigation, is a court of conciliation.
- The Family Court currently provides a range of advisory and referral services, including advice and referral to PDR services. While the DP refers to the need for clients to be able to access a `front door' the issues related to establishing advisory and referral services outside the court need to be explored. Council recommends that the Family Court, the Legal Aid Commissions and the legal profession be recognised as important points of first contact. This is not to suggest that those services could not also be obtained through the use of other agencies. The provision of additional advice and referral services would have cost implications.
- There is currently little or no overlap between court-based counselling and community based counselling services, although there is the potential for overlap in relation to court-based and community based mediation services. The differing focus at present of the court-based PDR services (dispute resolution counselling or conciliation) and the community based services (relationship counselling) has significant implications for the proposals raised in the DP. These need close study.
- Council draws attention to its report The Administration of Family Law in Australia (1985) and its previous work in this area in 1988. These papers were made by different Councils at different times in the development of the family law system and came to different conclusions.
- Council's submission puts forward practical ways in which the expertise of the Family Court Counselling and Mediation Service (FCCMS) can be retained on the basis that this is a stated objective in the DP.
- Council does not have sufficient information to establish whether the changes proposed in the DP can or cannot be done within the existing budgetary allocation. A full unit costing of existing and proposed services would be required to establish the resource level necessary. Council is concerned that the stated objective in the DP of achieving change within the existing budgetary allocation may lead to a reduction in the level of PDR services currently available.
- Council identifies a range of options available to government in relation to the delivery of PDR services in family law and suggests that all need to be considered.
- Council suggests that the timing of change to the present system should aim at achieving a balance between, on the one hand, allowing adequate time for change to be planned and implemented and, on the other, maintaining momentum and commitment to change and avoiding loss of morale. Full consideration should also be given to the client throughout the change process.
COUNCIL DELEGATION VISITS WELLINGTON NZ
A delegation from Council visited Wellington, New Zealand, from 15-17 October 1997 for discussions on a range of matters of mutual interest. While in Wellington the delegation had a full program of meetings arranged by Judge Patrick Mahony, New Zealand's Principal Family Court Judge. Judge Mahony introduced the program, attended a number of the discussions and also gave a number of papers.
The delegation also met with the NZ Minister for Justice, the Hon Doug Graham MP, the President of the NZ Court of Appeal, the Rt Hon Sir Ivor Richardson, six Administrative Judges of the Family Court and several other Family Court judges, members of the NZ Law Society's Family Law Committee, senior Departmental officials (Department for Courts, Inland Revenue Child Support Office, Legal Services Board, Ministry of Justice and Department of Social Welfare), Family Court Counselling Coordinators and Counsellors and members of the Family Courts Association.
Matters discussed included a number of Trans-Tasman issues, child support, Counsel for the Child, judicial appointments, legal aid, matrimonial property, domestic violence, counselling services and intercountry adoptions.
A detailed report on the visit was forwarded to the Attorney-General in November 1997.
A bound set of Family Law Council Annual Reports from the First Report in 1976 to 1996 was presented to Judge Mahony by the Chairperson in appreciation of his work in organising the program of meetings. Those who attended found the visit a success and of considerable benefit to the Council.
ANNUAL REPORT 1996-97 TABLED IN PARLIAMENT
The Attorney-General tabled Council's Annual Report 1996-97 in Parliament on 30 October 1997. Copies of the report, which were distributed to persons on Council's mailing list in November 1997, are available from Council's Secretariat. The report contains the latest available data on marriage and divorce in Australia as well as a range of statistical information from the Family Court of Australia. Full details are given of recommendations made to the Attorney-General during the year and other relevant information on the Council's activities is provided.
REPORT ON NOVEMBER 1997 COUNCIL MEETING
Council met in Canberra on 20-21 November 1997. During the course of the meeting Council had discussions with the Attorney-General, the Hon Daryl Williams AM QC MP, the Chief Justice of the Family Court, the Hon A B Nicholson AO RFD, Mrs Judith Roberts AM (Chair of the Family Services Council), Ms Pru Goward (Office of the Status of Women), Mr Philip Moss (PM&C) and Mr Chris Crowley of the Family Law Section of the Law Council of Australia.
The main matters dealt with at the meeting were: the Child Abduction Report, the Child and Family Services discussion paper, Violence and Family Law, the penalties project, civil and religious divorce, Council's primary dispute resolution services submission and the Report to the Attorney-General on Council's visit to Wellington, New Zealand.
UPDATE ON COUNCIL PROJECTS
Child and Family Services Committee. The CAFS Committee submitted its Discussion paper No 1 (DP1) to the Council's November 1997 meeting and the paper is being publicly released this month. DP1 is discussed elsewhere in this issue.
Child Abduction Committee. The Child Abduction Committee's final report is being released this month. Copies of the report will be available from the Council's Secretariat. A separate item on the report is contained elsewhere in this issue of FLC News.
Child Support Committee. The Council now has membership on the Child Support Liaison Committee which enables it to meet with officers of the Child Support Agency, the Department of Social Security and the Family Law Section of the Law Council on a quarterly basis. Annemaree Lanteri, Convenor of Council's Child Support Committee, is Council's delegate on the Liaison Committee. Jenny Degeling, from Council's Secretariat, is her deputy.
Clean Break Committee. This committee is looking into the operation of section 81 of the Family Law Act, especially in relation to spousal maintenance. A questionnaire prepared by the committee was distributed to family law practitioners with the assistance of the Family Law Section of the Law Council in September 1997. Responses have not been up to expectations and follow up action is in progress. About 170 completed questionnaires have so far been received and are being analysed as they arrive. Action is currently being taken to try to obtain the views of a wider range of family lawyers.
Penalties Committee. The Council had discussions with the Attorney-General about this project and the committee is giving priority to the project. A draft report has been prepared and is currently being considered by the committee. The report for Council's consideration is due to be ready for the February 1998 meeting. The project is looking into penalties imposed by the Family Court, particularly in relation to enforcement of court orders.
Violence Committee. A discussion paper prepared by this committee is currently being redrafted. It should be available for release before the middle of this year.
The Family Law Council News is a quarterly 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, Family Law Council, 50 Blackall Street, BARTON. ACT. 2600.
Editor: Bill Hughes Distribution: Cate Wells
Design: Printing & Design Subsection, Attorney-General's Department