Meeting Minutes for June 2012 Held in Brisbane s1

FAMILY LAW COUNCIL

MINUTES

21-22 June 2012

Location: Harry Gibbs Commonwealth Law Courts Building - Brisbane

Present

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

Dr Rae Kaspiew – Australian Institute of Family Studies - VIC

Justice Robert Benjamin – Family Court of Australia - TAS

Ms Kylie Beckhouse – Legal Aid - NSW

Ms Jennie Hannan – Anglicare WA

Ms Colleen Wall - ATSIWLAS

Federal Magistrate Kevin Lapthorn – Federal Magistrates Court - QLD

Mr Jeremy Culshaw – Culshaw Miller Lawyers - WA

Ms Elizabeth Kelly – Attorney-General’s Department – ACT (by video conf)

Observers: Ms Angela Filippello - Family Court of Aust – QLD

Ms Pam Hemphill - Family Law Courts - SA

Prof Lawrie Moloney – AIFS - VIC

Ms Melissa Crossley – Child Support Program - DHS - QLD

Mr Steve Hackett - Family Relationship Services Australia – ACT

Ms Adele Byrne – Federal Magistrates Court - VIC

Magistrate Susan Duncanson – Family Court of WA – WA

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

Ms Janet Power – Attorney-General’s Department – ACT

Ms Tracy Ballantyne – Attorney-General’s Department – ACT (by video conf)

Ms Sarah Teasey – Attorney-General’s Department – ACT (by video conf)

Ms Janine McFarlane – Attorney-General’s Department – ACT (by video conf)

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

Apologies: Ms Sara Peel – ALRC – NSW

Ms Sam Page - Family Relationship Services Australia – ACT

The following is a summary of items discussed:

Welcome

1.  Associate Professor Helen Rhoades welcomed members and observers to the Family Law Council (Council) meeting in Brisbane. She paid respects to the traditional owners of the land past and present. Apologies were noted (above). Associate Professor Rhoades advised the meeting would not be recorded and that the minutes will be the only record of the meeting.

2.  The new members were welcomed to Council – Ms Jennie Hannan, Justice Robert Benjamin, Ms Colleen Wall and Ms Kylie Beckhouse.

3.  Associate Professor Rhoades noted this meeting was to have been Ms Samantha Page’s final meeting as observer to Council for Family and Relationship Services Australia (FRSA). Ms Page was thanked for her valuable contribution to Council over many years. The new observers to Council were also welcomed: Mr Steve Hackett for FRSA, Ms Melissa Crossley for the Department of Human Services Child Support Program, Mr Geoff Sinclair for the Family Law Section of the Law Council of Australia (FLS-LC), and a re-introduction of Professor Lawrie Moloney for Australian Institute of Family Studies (AIFS), as this was his first meeting since becoming an observer in October 2011.

4.  The floor was opened for each meeting participant to introduce themselves.

5.  Associate Professor Rhoades provided Council with an update on Council’s two reports, Cultural and Linguistically Diverse (CALD) and Indigenous clients in the family law system, noting they were delivered to the Attorney-General in February and the Attorney’s initial response of providing funding on various projects. She also mentioned other work of Council in the last year, including various letters of advice and submissions.

Role of Members document

6.  Council discussed the draft Role of Members document prepared to assist Council members understand their role on Council. The document was amended and subsequently accepted. It will be amalgamated (by Council’s secretariat) with the Role of Observers document accepted as final in the February 2011 meeting. The intended use is for new members and observers to Council to help clarify their roles.

ACTION: (i) Secretariat to make amendments discussed and amalgamate the Role of Members document with the Role of Observers document and re-circulate.

Minutes of previous meeting

7.  Council accepted the minutes of the previous meeting without change.

Updates from observers

8.  Magistrate Susan Duncanson reported on the Family Court of Western Australia, noting the continuing difficulties affecting the courts’ workload because of the ill health of two Judges. She reported also that the Indigenous Family Liaison Officer role is no longer funded and they held an in-house conference on family violence as a consequence of the family violence amendments.

9.  Ms Pam Hemphill provided a report for the Family Law Courts that covered issues such as the Children’s Committee looking at processes that impact on children throughout the court procedure; the Expert Reference Panel to assist in the identification, formulation and articulation of the body of expertise deemed to be central to work of Family Consultants; an update on the South Australian pilot project to develop and implement initiatives to improve collaboration between the federal family law system and the South Australian child protection system; Child Dispute Service policies have been made publicly available on the Court’s website; the International Family Dispute Resolution training; recent professional development training and the calendar of future training.

10.  Ms Adele Byrne provided an update on the work of the Federal Magistrates Court, noting the Attorney-General was not proceeding with the amalgamation of the Courts and further consideration of changing the court’s name is being considered. Ms Byrne also raised issues relating to the increased complexity of recent cases leading to an increase in time being spent on each case. Ms Byrne also discussed (and distributed a review of) the Dandenong Project; the Relocation Pilot in Melbourne; the Contravention Pilot; funding restrictions on the Courts; collaboration with State and Territory agencies; Form 4 amendments, and the Memorandum of Understanding with Richard Chisholm.

11.  Ms Melissa Crossley provided a report on behalf of the Department of Human Services – Child Support Program that covered issues such as the integration of the Department and amalgamation of some areas. She noted the debt collecting arrangement is improving by having lump sums up front and legislative reform regarding care determinations (administrative not judicial) is expected to start on 1 July 2012 if passed. Ms Crossley discussed automated decision making and a court case of interest to Council. Ms Crossley undertook to try to get some statistics on how many care decisions involving non-compliance with a written agreement, court order or parenting plan are made and then proceed to objection followed by an application to the SSAT and statistics on registrations of binding and limited agreements.

ACTION: (ii) Ms Crossley will to try to get some statistics on how many care decisions involving non-compliance with a written agreement, court order or parenting plan are made and then proceed to objection followed by an application to the SSAT and statistics on registrations of binding and limited agreements.

12.  Professor Lawrie Moloney provided a report on behalf of AIFS outlining current work on the Families Week fact sheet; a report on past adoption practices; a literature review on differential impact on life events; teenage parent study; out of home care longitudinal study, and publications such as adolescents perspectives on separation and reporting sexual assault. Professor Moloney also mentioned the Coordinated Family Dispute Resolution pilot and Independent Children’s Lawyer evaluations; and Wave 3 Longitudinal Study data to be available later in 2012. It was also noted that preparation was well under way for the AIFS conference to be held in July at the Melbourne Convention Centre.

13.  Mr Steve Hackett, on behalf of FRSA, reported that Ms Sam Page was leaving FRSA after five years and will be missed within the membership and across the sector. He also discussed the Family Dispute Resolution scholarships for CALD and Indigenous practitioners and noted the good results to date. FRSA will be holding a Senior Executive forum in Melbourne in August and a conference in Darwin in November. Mr Hackett noted that Professor Richard Chisholm was commissioned by the Victorian Family Law Pathways Network to do a paper on the Implications of the definition of Family Counselling under the Family Law Act and undertook to follow up with Professor Chisholm to seek permission to circulate the paper to Council members and observers.

ACTION: (iii) Mr Hackett to follow up with Prof Chisholm to seek permission to distribute the paper on family counselling to Council members and observers.

14.  Mr Geoff Sinclair provided an outline of the Family Law Section of the Law Council (FLC-LC) of Australia, its role and organisation structure. Mr Sinclair noted the work the FLS-LC is currently undertaking, such as a proposal for simplification of Part 7 of the FLA, continuing the partnership with the Attorney-General’s Department (AGD) through the development of a ‘best practice’ resource on Hague Convention matters and abductions and working with AGD on financial agreements. Mr Sinclair discussed a working party set up to make progress on the efficiencies between the two courts. He also outlined significant concern relating to the downturn in numbers of expert witnesses in courts (particularly psychiatrists) and expressed an interest to finding out what the reluctance to appear in court is. Mr Sinclair also mentioned the National Family Law Conference to be held in Hobart on 14-17 October 2012.

15.  Ms Angela Filippello discussed the impact on the budget of the Courts and ways forward to continue to deliver services.

Update from the Attorney-General’s Department

16.  Ms Janet Power provided an update from the Department that covered issues and projects such as: the work being done to improve collaboration between the federal family law courts and State and Territory child protection systems; legislation and related matters such as the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 that commenced on 7June2012 and the associated education campaign, recent proclamations/validity of Family Court orders, and legislation for the establishment of the Military Court; the scoping study for competency development for mediation in property and spousal maintenance disputes as well as international disputes to support the Government’s obligations in Hague Convention matters; the common screening and risk identification tool being developed by Relationships Australia South Australia; developing an Operational Framework for Children’s Contact Services; the Family Law TermFinder project; reviews of the Family Law Pathways Networks, Family Law Services, and the National Partnership Agreement for Legal Assistance Services; the Independent Children’s Lawyer request for tender; the successful International Mediation Training event for Australian Family Dispute Resolution Practitioners held in Sydney in May; and issues associated with the Court fee reforms.

Correspondence

17.  There were two items of correspondence for discussion. First was a fax from Nola Balas – from the Netherlands. Council discussed the issues raised by Ms Balas and agreed to a response. The response letter will be drafted by Council’s secretariat for signature of the Chair. The second was a letter from Angela Lynch from Women’s Legal Service. Council discussed the issues raised by Ms Lynch and agreed for Council’s secretariat to draft a response for signature by the Chair. Judicial members of Council will discuss the issues raised by Ms Lynch with their joint Family Violence Committees.

ACTION (iv) Secretariat to draft a response to Ms Balas for signature of the Chair.

ACTION (v) Secretariat to draft a response to Ms Lynch for signature of the Chair.

Administration – FOI compliance

18.  Ms Power discussed Council’s requirement to comply with the Freedom of Information Act in regard to making information more freely available to the public. Council agreed that minutes of meetings, starting from the February 2012 meeting, will be posted on Council’s website by Council’s secretariat.

ACTION (vi) Secretariat to arrange for the meeting minutes from February 2012 to be uploaded to the website and make this an ongoing practice after minutes are confirmed.

Family Violence and Financial Disputes

19.  Dr Kaspiew discussed data on family violence and property issues. It was noted in discussion that Kennon (1997) 22 Fam LR1 was raised in one third to half of the cases without evidence. Council discussed other issues raised such as future needs versus contributions and agreed to re-visit the issue again in the future.

ICL Research

20.  Dr Kaspiew provided Council with an overview of the research AIFS has been engaged to undertake involving Independent Children’s Lawyers, their use and efficiency. She noted that AIFS is currently engaging stakeholders.

New Terms of Reference – Surrogacy and Family Formation

21.  Council had preliminary discussions on the terms of reference and what would be an appropriate methodology to adopt to provide the Attorney-General with a report on the issue. It was noted that the Attorney-General agreed to provide funding for a Research Assistant for the project.

Guest speaker FM Michael Baumann

22.  Council welcomed Federal Magistrate Michael Baumann to the meeting. FM Baumann talked about current issues, changes within the Courts and noted the importance of judicial continuity. He expressed a need for relationship-building with the states to assist in the logistical running of cases and the importance of enduring solutions and consideration of the toll and pressures on families. Council thanked FM Baumann for providing an interesting discussion and overview on issues he has been involved with.