the family law act 1995 (cth) and the un general assembly, convention on the rights of the child –...

8/10/2019 The Family Law Act 1995 (Cth) and the UN General Assembly, Convention on the Rights of the Child To what e

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The Fam ily Law Act1995 (Cth) and the UN General Assembly,

Conventionon the Rights o f the Chi ld

To what extent does international human rights law influence

Australias domestic family law?

By Corey Gauci (5thyear B Laws/ B Arts)

The Family Law Legislation Amendment (Family Violence and Other

Measures) Act 2011 (the Act) made numerous amendments to the Family

Law Act 1995 (Cth) (the FLA)in order to strengthen the focus of the

legislation on the protection of children from violence and abuse. However,

the Act did not only make amendments for this purpose, and one of the other

amendments concerned the UN Convention on the Rights of the Child

(UNCROC).

Section 60B(4) of the FLA now reads:

An additional object of this Part is to give effect to the Convention on

the Rights of the Child done at New York on 20 November 1989.

On first reading of the additional object it may appear as if the courts power

to deal with the complexities surrounding parenting arrangements for children

in Part VII of the Act, has been specifically addressed to eliminate any gaps

and ambiguities in the FLA, upon closer interpretation of the object, it wouldseem to be a much narrower provision than might first appear.

Why additional?

Section 60B(1) lists four objects of Part VII of

the FLA, which specifically concern childrens

matters. Subsection (2) then sets out five

principles that are to be applied except when

the application of the principle would be

contrary to a childs best interests. Subsection

(3) adds further detail and amplifies

subsection (2)(e) in relation to Aboriginal and

Torres Strait Islander children. The new provision, an additional object is

then inserted as a new subsection (4).

Since the introduction of the additional object, many have questioned the

significance of the new object. The FLA refers to additionalconsiderations in

Part VII; specifically addressing a range of factors intended to help courts

determine what outcome is likely to best match the best interests of the child.

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The additional considerations, in this context, are distinguished from two

primary considerations. InAldridge v Keaton (2009) 235 FLR 450 at para74,

the Full Court said that the amendments themselves do not direct any

particular weighting or priority to any provision in the Part. Moreover, in Slater

v Light (2011) 45 Fam LR 41, at para 45, the Full Court said, it is wellrecognised that additional considerations may outweigh primary

considerations despite the nomenclature of subsections 60CC(2) and

60CC(3).Collectively, these judicial remarks concerning interpretation seem

to suggest that the two sets of considerations are different in kind, rather than

in importance: Decision-Making About the Best Interest of the Child: The

Impact of the Two Tiers(2006) 20 AJFL 179.

An examination of the Explanatory Memorandum of the 2011 Bill would seem

to suggest that the government did not intend that the additional object in

s.60B(4) should have the same effect as the object in s.60B(1). This can be

understood by examining the role of the objects in the interpretation and

application of Part VII of the FLA. The best interests of the child contained in

s.60CC are the paramount considerations. Whilst the objects and principles in

s.60B have less of a direct role in the court. In the leading case of Goode and

Goode(2006) FLC 93-286, the Full Court said that the objects and principles

contained in s.60B provide the context in which the factors in s.60CC are to

be examined, weighed and applied in the individual case(para10). The

courts treatment of the objects and principles in Goode and Goode,suggests

that the objects of the FLA do play a role in assisting the Court to exercise itsdiscretion concerning the best interests of a child.

It follows that the objects in s.60B(1) play a role in the exercise of judicial

discretion and in the determination of outcomes. Conversely, the additional

object in s.60B(4) differs to the objects in s.60B(1) insofar as it only plays a

role in the interpretation of the statute in the event of an ambiguity. In

particular, para 23 of the Explanatory Memorandum provides the following:

Item 13 inserts a new subsection into section60B of the Act to provide

that a further object of Part VII of the Act is to give effect to the

United Nations Convention on the Rights of the Child (the

Convention). The purpose of this object is to confirm, in cases of

ambiguity, the obligation on decision makers to interpret Part VII of the

Act, to the extent its language permits, consistently with Australias

obligations under the Convention. The Convention may be considered

as an interpretive aid to Part VII of the Act. To the extent that the Act

departs from the Convention, the Act would prevail. This provision is

not equivalent to incorporating the Convention into domestic law.

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That is, as an additional objecthas a much more limited role than the

objects listed in s.60B(1) of the FLA. Thus, in the event of an ambiguity in a

Part VII provision, an interpretation that promotes the principles contained

within the UNCROC is to be preferred to an interpretation that does not.

The scope of the

additional object

ultimately depends on

how the court interprets

the notion of ambiguity.

Although Part VII of the

FLA gives structure to

discretionary decisions in

relation to parenting

disputes, the

interrelationship between

different provisions of the

FLA remain uncertain.

Ultimately, it is far from clear what parliament exactly intended in phrasing the

newly added object as an additional object. What parliament seems to have

intended was to provide Courts with greater discretionary by leaving the

question of interpretation largely unanswered. Although there is no doubt that

the FLA is a creature of its time, which reflects social change and progressivelaw-making, it is questionable whether the insertion of s.60B(4) is an effective

way of promoting human rights. Thus, opponents to these amendments

maintain that it may be better for governments to reflect on our international

human rights obligations, carefully weigh-up relevant policy implications, and

then legislate clearly for the desired outcomes; certainly make it easier for

litigants, their lawyers and judges.