FAMILY LAW COUNCIL

MINUTES

1-2 November 2012

Location: Murrumbidgee Room, Attorney-General’s Department - Canberra

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 – WA

Ms Colleen Wall - ATSIWLAS – QLD

Federal Magistrate Kevin Lapthorn – Federal Magistrates 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

Prof 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 Magistrates Court – VIC (via teleconference)

Magistrate Susan Duncanson – Family Court of WA – WA

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

Ms Louise Glanville – Attorney-General’s Department – ACT

Dr Susan Cochrane – Attorney-General’s Department – ACT

Ms Sarah Teasey – Attorney-General’s Department – ACT

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

Ms Lisa Zehetner – Attorney-General’s Department – ACT

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

Apologies:Ms Sara Peel – ALRC – NSW

Ms Angela Filippello - Family Court of Aust – QLD

Summary of Actions Arising / Date Completed
(i) a) Secretariat to note in the draft June meeting minutes the outstanding action item from DHS (item ii) was discussed by Ms Yvonne Marsh at the November 2012 meeting; and b)Secretariat to arrange for the June 2012 meeting minutes to be marked as final and uploaded onto Council’s website. / a) 15/11/2012
b)9/1/2012
(ii)Mr Geoff Sinclair to try to locate and provide the form previously used by the Court Counselling Section that was helpful to flag relevant issues for the Courts. / completed
(iii)Secretariat to add Flagging Risks to next meeting’s agenda. / 12/11/2012
(iv)Secretariat to convene Flagging Risks sub-committee teleconference. / Arranged for current meeting
(v) Secretariat to send reminder of changed meeting location to meeting participants. / 9/11/2012

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 Canberra. She welcomed new attendees to the meeting:
    Mr Phillip Cameron,Ms Yvonne Marsh and Attorney-General’s Department (AGD) staff
    Ms Louise Glanville, Dr Susan Cochrane, Ms Sarah Teasey, Ms Tracy Ballantyne and
    Ms Lisa Zehetner who would attend at various times. Apologies were noted (above).
    Associate Professor Rhoades advised the minutes will be the only record of the meeting.

Minutes of previous meeting

  1. Council accepted the minutes of the previous meetingnoting the outstanding item from DHS (item ii) was provided and discussed by Ms Yvonne Marsh within this meeting.

ACTION (i): a) Secretariat to note in the draft June meeting minutes the outstanding action item from DHS (item ii) was discussed by Ms Yvonne Marsh at the November 2012 meeting; and b) Secretariat to arrange for the June 2012 meeting minutes to be marked as final and uploaded onto Council’s website.

Flagging risks

  1. Federal Magistrate Kevin Lapthorn led the discussion about flagging risks for judicial officers. Discussion involved issues such as the importance of confidentiality versus the risk of harm due to the lack of information available for judiciary, what level of information should be shared and how can it be shared.
  1. Mr Geoff Sinclair mentioned a form previously used that was helpful to flag relevant issues for the Courts. He undertook to try to provide Council with a copy of the form for its information.
  1. Council agreed to form a sub-committee to discuss the issue further and report back at the next meeting for continued discussion. The sub-committee will include:Federal Magistrate Kevin Lapthorn, Ms Jennie Hannan, Ms Elizabeth Kelly, Mr Geoff Sinclair and Ms Kylie Beckhouse.

ACTION (ii): Mr Geoff Sinclair to try to locate and provide the form previously used that was helpful to flag relevant issues for the Courts.

ACTION (iii): Secretariat to add Flagging Risks to next meeting’s agenda.

ACTION (iv): Secretariat to convene Flagging Risks sub-committee teleconference.

General Business

  1. It was noted that Council’s website has been updated and the 2011-12 Annual Report was tabled in the Senate on 17 October - available on the website and in hardcopy.
  1. Associate Professor Helen Rhoades thanked Dr Rae Kaspiew, Ms Kylie Beckhouse, Justice Robert Benjamin and Mr Jeremy Culshaw for their assistance in the production of summariesof Council’s Reports on Improving the Family Law System for Clients from Culturally and Linguistically Diverse Backgrounds and Improving the Family Law System for Aboriginal and Torres Strait Islander Clientsfor the Australian Journal of Family Law.
  1. It was noted that Associate Professor Helen Rhoades will attend the Chief Justice’s Family Law Forum on behalf of Council on 29 November 2012.

Correspondence

  1. There were two items of correspondence received. It was noted that a letter from a member of the public was received for consideration in relation to Council’s terms of reference on surrogacy and family formation. It was also noted that the Attorney-General,
    the Hon Nicola Roxon MP, had written to Council to include an additional consideration to the current terms of reference on surrogacy and family formation.

Updates from observers

  1. Magistrate Susan Duncansonreported on the Family Court of Western Australia, particularly noting the passing of Justice Martin andthe difficulties created for the workload of the Court due to the continuing ill health of judges. She noted the positive effect the federal government’s increase in court fees has had, that WA has received funding for an acting Magistrate for two years, and the development of a Memorandum of Understanding with Child Protection Services and the courts – noting that WA family consultants do have access to criminal reports of clients in the court system because of the unique nature of the FCWA.
  1. Ms Pam Hemphill provided a report for the Family Law Courts that covered issues such as: a report on the Independent Children's Survey developed by the Children’s Committee being distributed to Judicial Officers and is awaiting approval for distribution externally - noting the next phase of the project will be exploring ways in which children can provide advice and feedback to the Courts in relation to their processes; a proposal has been developed by the Australian Institute of Family Studies with the support of the Courts with the aim to develop a series of 6 research briefs covering issues such as family violence, substance misuse and mental health concerns, to assist professionals to access and assess a contemporary evidence base about these topics to cases; and that court policies arecurrently being reviewed and will be uploaded onto the internet with ‘Practice Directions’ for internal use only. She also outlined the professional development being undertaken including training with Family Consultants in relation to interviewing children, training in attachment based observational methods, and considerations for providing cultural competency training when working with Aboriginal and Torres Strait Islander families.
  1. Professor Lawrie Moloney reported on the work being undertaken by the Australian Institute of Family Studies, noting the Institute’s Research Directions 2012-15 being released in July and new research projects, including a longitudinal study of humanitarian migrants for the Department of Immigration and Citizenship, a project to examine the use, role and effectiveness of Independent Children’s Lawyers, a longitudinal study to understand critical success factors for young people transitioning from out of home care for the Victorian Government Department of Human Services, and a report on the range of trends in Australian families based on the 2011 census and other data such as HILDA and LSAC. He also noted the continuing work on the identification of support and service needs of people affected by past adoption policies and practices, evaluation of the Co-ordinated Family Dispute Resolution Pilot Program, and various other programs and projects being undertaken.
  1. Mr Steve Hackett reported on behalf of Family & Relationship Services Australia. He noted since the previous meeting he has been promoted to CEO of the organisation and Ms Amy Elleway to the role of Deputy. Mr Hackett outlined current projects such as: increased community engagement through brochures for practitioners about what FRSA does; involvement in the National Partnership Review; working with the Department of Families, Housing, Community Services and Indigenous Affairs on the future directions of the Family Services Program; review of the nine Family Law Services; Child Contact Services frameworks, and the Aboriginal and Torres Strait Islander & CALD Family Dispute Resolution Practitioner scholarships. Mr Hackett also noted the FRSA National Conference 2012 in Darwin on 13-15 November.
  1. Ms Yvonne Marsh reported on behalf of the Department of Human Services – Families & Child Support Policy Branch. She outlined recent legislative changes, in particular one that addresses a Family Court decision about the implementation of ‘section 107’ orders. Ms Marsh also described the recent impacts of the integration of the Child Support Agency into DHS, including the opportunity to consider more holistically the customer’s experience in terms of child support, Family Tax Benefit and other services and income support payments provided by the Department. Ms Marsh also provided some statistical data relating to the child support customer base, the nature of their assessments and use of change of assessment and administrative review mechanisms.
  1. Mr Geoff Sinclair reported on the work of the Family Law Section of the Law Council of Australia, including: work on harmonising the sets of rules for each of the courts; improving practices in case management; possible reforms regarding Binding Financial Agreements; the development of a Hague Convention Child Abduction Handbook; a report on Case Guardian practices in each state, and looking at Section 121 (of the Family Law Act 1975) due to the increase of identification of parties through social networking.
  1. Ms Adele Byrne reported (via teleconference) on behalf of the Federal Magistrates Court on issues including: the Federal Circuit Court of Australia Legislation Amendment Bill 2012 is currently in the House of Representatives- the Federal Circuit Court of Australia (Consequential Amendments) Bill will follow; the financial constraints on courts continue; Darwin and Melbourne will have new appointees in the near future; the court fee reforms will commence on 1 January 2013; the Court’s use of administered funds to source dispute resolution services such as counselling mediation and conciliation from external organisations - providers offer services to the Court in over 200 locations and this is particularly beneficial in regional and rural areas in support of the Court's circuit work,and there has been an increase in e-filings.

Update from the Attorney-General’s Department

  1. Ms Elizabeth Kelly provided an update from the Department that covered issues and projects such as: the work involving collaboration and information sharing between the federal family law system and the State and Territory child protection systems; the Detection Of Overall Risk Screen (DOORS) project – a frontline screening tool and framework to identify safety risks for clients across the family law system; the independent review of the Family Law Pathways Networks; the review of the nine family law services under the Family Support Program; the Australian Institute of Family Studies’ research into the use and efficacy of Independent Children’s Lawyers; and the Family Law TermFinder project, noting it is currently in a testing phase and is currently being translated into community languages.

Terms of Reference

  1. Council welcomed its Research Fellow, Dr Cressida Limon, for its terms of reference on surrogacy and family formation and discussed progress and the approach it will take on the five considerations in the terms of reference. Associate Professor Rhoades thanked Mr Geoff Sinclair, Federal Magistrate Lapthorn, Ms Adele Byrne, Ms Elizabeth Kelly and Ms Frances Brown (AGD) for their work so far on providing Council with relevant information.
  1. Council’s discussions were assisted byguest speakers: Associate Professor John Tobin who discussed the Convention on the Rights of the Child, Dr Wendy Southern from the Department of Immigration and Citizenship who discussed international surrogacy and artificial conception procedural issues in the context of migration and citizenship cases, and Ms Penny Williams from the Department of Foreign Affairs and Trade who presented issues affecting passport policy and the experiences reported from posts internationally.
  1. The guest speakers provided Council with a wealth of information to consider and were thanked for their highly informative presentations. With so much to consider, Council decided it would form subcommittees at the following February meeting.

AIFS Research on parental responsibility

  1. Dr Kaspiew provided Council with an overview of research theAustralian Institute of Family Studies has undertaken in the area of Parental Responsibility: Legal Constructions and Social Executions. She acknowledged the work of Lixia Qu, Ruth Weston and John de Maio in forming the research paper.

Binding Financial Agreements – Discussion Paper

  1. Ms Tracy Ballantyne and Ms Lisa Zehetner from the Attorney-General’s Department discussed an Issues Paper on Binding Financial Agreements. Theynoted that the Family Law Section of the Law Council of Australia was in the process of making comments on the Issues Paper. The Issues Paper, in draft form, was circulated to Council for its information at this time with the expectation that a final version be circulated to Council for comment.

Guest speaker Professor Richard Chisholm – Model Child Protection MOU

  1. Council welcomed Professor Richard Chisholm to discuss his work on the development of a ‘best practice’ framework for protocols to improve the exchange of information between the federal family courts and the State and Territory child protection systems. Professor Chisholm’s work was acknowledged as a positive approach to improving the protections of vulnerable children.

Other business

  1. Meeting participants discussed options for the location of future meetings and decided due to the high costs of holding a meeting in Perth, the scheduled 13-14 June 2013 meeting would be held in Sydney instead.

ACTION (v): Secretariat to send reminder of changed meeting location to meeting participants.

Meeting close

  1. The Chair thanked participants of the meeting. The meeting closed. The next meeting will be held inMelbourne21-22February 2013.

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