FAMILY LAW COUNCIL

MINUTES

13-14 June 2013

Location: Family Law Courts, Lionel Bowen Building, Lvl 8 – 97-99 Goulburn Street, Sydney

Present

Members:(Chair) Professor Helen Rhoades – Melbourne University – VIC

Justice Robert Benjamin – Family Court of Australia – TAS

Ms Kylie Beckhouse – Legal Aid – NSW

Ms Jennie Hannan – Anglicare WA – WA

Ms Colleen Wall – Nguin Warrup (Black Drum) Ltd – QLD

Judge Kevin Lapthorn – Federal Circuit Court – QLD

Mr Jeremy Culshaw – Culshaw Miller Lawyers – WA

Ms Elizabeth Kelly – Attorney General’s Department – ACT

Observers:Mr Phillip Cameron – Family Court of Australia – NSW

Ms Pam Hemphill – Family Law Courts – SA

Professor Lawrie Moloney – AIFS – VIC

Ms Yvonne Marsh – Families & Child Support Policy Branch – DHS – QLD

Mr Steve Hackett – Family Relationship Services Australia – ACT

Ms Adele Byrne – Federal Circuit Court – VIC

Justice Susan Duncanson – Family Court of WA – WA

Mr Geoff Sinclair – Family Law Section – Law Council of Australia – QLD

Ms Cathy Rainsford – Attorney-General’s Department – ACT

Ms Robyn Gilbert – Australian Law Reform Commission – NSW

Dr Cressida Limon – Family Law Council Research Fellow – VIC

Ms Tracy Ballantyne – Attorney-General’s Department – ACT

Secretariat:Mrs Kim Howatson – Attorney-General’s Department – ACT

Summary of Actions Arising

/ Date Completed
(i): Secretariat to make alterations as agreed and arrange for the February 2013 meeting minutes to be marked as final and uploaded onto Council’s website. / 28/6/2013
(ii): Secretariat to draft letter to the Attorney-General re: vulnerable witness protection for signature by the Chair. / 10/7/2013
(iii): Secretariat to distribute Family Court and Federal Circuit Court’s 2013 Seminar Program. / 20/6/2013
(iv): Secretariat to circulate the AIFS observer report. / 1/8/2013
(v): Council to approach the National Children’s Commissioner to discuss family law issues affecting children. / 22/8/2013

The following is a summary of items discussed:

Welcome

  1. Professor Helen Rhoades welcomed members and observers to the Family Law Council (Council) meeting in Sydney and acknowledged the traditional custodians of the land. She welcomed a new attendee to the meeting, Ms Robyn Gilbert, representing as an observer for the Australian Law Reform Commission on this occasion – able to attend only on the first day of the meeting.
  1. Apologies were received from Dr Rae Kaspiew, Mr Khanh Hoang for the whole meeting, and from Ms Elizabeth Kelly, who was able to attend only on the second day. Ms Cathy Rainsford represented Ms Kelly. Also, notice was received by those delayed in attending the meeting due to bad weather.
  1. Professor Rhoades noted the renaming of the Federal Magistrates Court to the ‘Federal Circuit Court’ on 12 April 2013.
  1. Professor Rhoades advised that Colleen Wall is no longer with the Aboriginal & Torres Strait Islander Women’s Legal & Advocacy Service and is currently a Director of Nguin Warrup (Black Drum) Ltd.
  1. Professor Rhoades also acknowledged this was Ms Cathy Rainsford’s last Council meeting and thanked her for her work with Council. Ms Tamsyn Harvey has been appointed as the Assistant Secretary, Family Law Branch from mid-July.
  1. Tracy Ballantyne, Principal Legal Officer in Family Law Branch, also attended the meeting as she has a policy interest in Council’s current terms of reference and her attendance provides Council with some additional continuity from the Department with Ms Rainsford’s departure.

Minutes of previous meeting

  1. Council accepted the minutes of the previous meeting noting one minor alteration to be made.

ACTION (i): Secretariat to make alterations as agreed and arrange for the February 2013 meeting minutes to be marked as final and uploaded onto Council’s website.

  1. As an action item from the previous meeting, Council had agreed to include a discussion about the impact of filing fees for subpoenas for Independent Children’s Lawyers during this meeting. However, as the Attorney-General has since addressed the issue that was of concern to Council (see media release on 14 May 2013), it was agreed the discussion was no longer required.
  1. Following discussions at the February meeting, Council wrote formally to the Attorney-General’s Department recommending that participation in the collaboration project be extended to include police. The response from the Department was discussed as part of Council’s discussion of ‘Correspondence’.

General Business - Correspondence

  1. Ms Cathy Rainsford, on behalf of the Department, replied to Council in regard to its request to extend the participation of the collaboration project to include police, noting that consideration was given to this request. This issue was discussed further in the ‘Departmental Update’.
  1. Council noted correspondence from Ms Angela Lynch regarding Women’s Legal Services Australia’s (WLSA) priority issues. This correspondence helped to inform Council’s discussion on Vulnerable Witness Protection in the Family Law Court in Relation to Self-Represented Litigants.

Vulnerable Witness Protection in the Family Law Court in Relation to Self-Represented Litigants

  1. Council discussed concerns regarding the lack of protections in the Family Law Act to prevent victims of family violence and other vulnerable witnesses from being directly cross-examinedby their perpetrators in family law trials. It was agreed that Council should write to the Attorney regarding this issue. Council drafted a letter for consideration during the meeting. The letter required minor edits and it was agreed that Council’s Secretariat was to make those edits and provide the letter to the Chair for signature.

ACTION (ii): Secretariat to edit and finalise the letter to the Attorney-General re: vulnerable witness protection for signature by the Chair.

Updates from observers

  1. Mr Phillip Cameron, on behalf of the Family Court of Australia, noted recent and impending judicial appointments and retirements. He advised that the legislation to formally establish a single administration for the Family Court and Federal Circuit Courts commences on 1 July 2013. The administration will be known as the ‘Family Court and Federal Circuit Court’ with the term ‘Family Law Courts’ gradually being phased out. Signage will be changed to ‘Family Law Registry’. The Family Law Court’s website will remain in use for the foreseeable future until it is determined how best to decommission it and move content elsewhere.
  1. Ms Yvonne Marsh reported on behalf of the Department of Human Services – Families & Child Support Policy Branch. She advised the recent Budget delivered some changes and new programs, including the allocation of funds to replace the Child Support computer system as well as funds to develop a business case to inform a decision about upgrading or replacing the Income Security Integrates System – the heart of the Centrelink IT system. She noted the upcoming election/caretaker mode and an amendment to the Child Support Guide in terms of certification required for binding agreements. Ms Marsh also drew Council’s attention to a recent decision by Watts J (yet to be reported), noting its inconsistency with the decision of Brown FM in Daley v Daley (2009) FLC 98-039.
  1. Justice Susan Duncanson, reporting on behalf of the Family Court of Western Australia, discussed the following: a court-related internet pilot program; recent collaboration work to create a DVD on domestic violence; work with state court and welfare agencies regarding care and protection; and various statistics on case-loads of the Court.
  1. Ms Adele Byrne reported on behalf of the Federal Circuit Court on issues including: the name change of the court and judicial officers which took effect on 12 April 2013; appointments to the Court; workload issues; the amended judicial complaints procedure; that the Court Scrutiny Bill 2013 and the Court Scrutiny (Consequential Amendments) Bill 2013 are both currently before the Senate; the operation of a specialist relocation list in the Melbourne Registry; and an increase in filing of Form 4’since the introduction of the family violence amendments.
  1. Ms Pam Hemphill provided a report for the Family Law Courts including an overview of her recent attendance at the Association of Family and Conciliation Courts’ conference; her work with Sesame Street Workshop in relation to its material on divorce and children; an update on the Children’s Committee which is being assisted by the ACT Children & Young People Commissioner; her attendance at other recent conferences and presentations, including one for the Legal Aid Commission of Tasmania; the release of the DSM-V in May; and various national professional development initiatives (a schedule was provided to the Secretariat for distribution to meeting participants).

ACTION(iii):Secretariat to distribute Family Court and Federal Circuit Court’s 2013 Seminar Program.

  1. Mr Geoff Sinclair reported on some of the work of the Family Law Section of the Law Council of Australia (FLS), including: the rollout of the DOORS training program; progress on the International Parental Child Abduction legal resource on Hague Convention matters; the development of strategies to enhance engagement with new legal practitioners; and recent training for staff of the Family Law Branch of AGD to assist the staff gain a better understanding of family law in practice. The 16th biennial National Family Law Conference will be held in Sydney from 7-10 October 2014 and the scheduled Independent Children’s Lawyer training will be held in Melbourne from 22-24 August.
  1. Mr Steve Hackett reported on behalf of Family & Relationship Services Australia (FRSA). He discussed: recent forums held by FRSA; the Parliamentary Briefing day where FRSA had 45 meetings with relevant parliamentary representatives; the establishment of a number of panels to assist with submissions and consumer advocacy; the review of the Family Support Program; FRSA’s attendance at the Secretariat of National Aboriginal and Islander Child Care conference; and the FRSA National Conference to be held in Canberra on 5-7 November with the theme ‘Investing in Families and Communities: Prevention + Integration + Innovation’.
  1. Ms Robyn Gilbert, on behalf of the Australian Law Reform Commission (ALRC), noted the ALRC was not currently working on family law issues.
  1. Professor Lawrie Moloney, representing the Australian Institute of Family Studies (AIFS), was not present at the time of observer reports. He later provided a written update to Council’s Secretariat to circulate.

ACTION (iv): Secretariat to circulate the AIFS observer report.

Update from the Attorney-General’s Department

  1. Ms Cathy Rainsford provided an update from the Department on AGD projects and current issues including the recent decision by the Attorney-General to re-appoint Professor Rhoades as Chair of Council and the re-appointment of Mr Culshaw, Dr Kaspiew and Judge Lapthorn for a further three years; the review and research on Family Support Program family law services; the AIFS report on Independent Children’s Lawyers; the AIFS survey on recently separated parents; and increased funding for the family pathways networks. She advised thatthe collaboration project on the intersection of family law system and state and territory child protection systems included consideration of extending participation to law enforcement (as requested by Council). A collaboration meeting was held in Canberra in June 2013 with a key outcome being the establishment of a taskforce to be chaired by Professor Richard Chisholm. Ms Tracy Ballantyne also provided an update on the collaborative work AGD is undertaking with relevant stakeholders.
  1. The role of the new National Children’s Commissioner, Ms Megan Mitchell, was discussed and it was agreed that Council will approach the Commissioner to discuss family law issues affecting children.

ACTION (v): Council to approach the National Children’s Commissioner to discuss family law issues affecting children.

Terms of Reference

  1. Council’s discussion of its terms of reference was led by Dr Limon, who informed Council of the submissions received and the research conducted since its previous discussions.
  1. Mr Sam Everingham, President of Surrogacy Australia, presented to Council. Mr Everingham provided Council with valuable insights into the use of overseas surrogacy arrangements by Australian couples and outlined the results of surveys of the organisation’s members.
  1. The discussions held over the two days contributed further to the formulation of Council’s views for its final report which is due in December 2013. Submissions received by stakeholders contributed to those discussions. Dr Limon noted that further submissions are expected to be received before the end of June deadline.
  1. It was noted that a teleconference is likely to be held before the next Council meeting in October to refine Council’s views relating to possible recommendations regarding the parenting provisions in the Family Law Act.

Parliamentary Secretary

  1. Council met with the Hon Shayne Neumann MP, Parliamentary Secretary to the Attorney-General. Mr Neumann provided an overview of his role and was interested in hearing from Council and its observers about Council’s work and its interest in current issues affecting the family law system.

Meeting close

  1. The Chair thanked participants of the meeting. The meeting closed. The next meeting will be held in Canberra in October 2013.

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