By Patrick Parkinson. This article is part of our July focus on the rights of children and youth. Read our Editorial for more on this theme.
The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 made numerous amendments to the Family Law Act 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) 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.
Advocates for the legislative recognition of international human rights conventions may be excited by this explicit reference to UNCROC as an “object” of Part VII of the Act, which concerns parenting arrangements for children. An object expresses the purpose for which legislation is written and it is intended to guide the interpretation and application of the law. However, the provision requires close examination. Using orthodox principles of statutory interpretation, it would seem to be a much narrower provision than might first appear.
1. An “additional” object
The first question that arises is why it is called an “additional object”. Section 60B(1) lists four objects of Part VII of the Family Law Act, which is concerned with children. Subsection (2) then sets out five principles that are to be applied except when the application of the principle would be contrary to a child’s best interests. Subsection (3) adds further detail to amplify subsection (2)(e) in relation to Aboriginal and Torres Strait Islander children. The new provision, an “additional object” is inserted as a new subsection (4).
Why then an “additional object”, rather than simply being added to the list of objects that already exist in subsection (1)? The word “additional” is used in one other place in Part VII of the Family Law Act, in listing the factors that help courts determine what outcome for the dispute is likely to be in the best interests of the child. The “additional” considerations, in this context, are distinguished from two “primary” considerations. This terminology has itself given rise to some difficulties of interpretation. Does it imply a hierarchy of considerations, with the primary ones to be given more weight than the additional ones? The Full Court of the Family Court (the appeal court) thought not. In Aldridge v Keaton (2009) 235 FLR 450 at para 74, the Full Court said that “the amendments themselves do not … direct any particular weighting or priority to any provision in the Part”. In Slater v Light (2011) 45 Fam LR 41, at para 45, the Full Court said that “it is well recognised that additional considerations may outweigh primary considerations despite the nomenclature of sub-sections 60CC(2) and 60CC(3).” This interpretation was based upon specific statements to that effect in the Explanatory Memorandum accompanying the 2006 Bill.
This interpretation might seem to suggest that the word “additional” does not mean “secondary” or “less important”, raising questions as to why the Parliament chose to have two tiers of considerations in the first place. I have answered this elsewhere by suggesting that the two sets of considerations are different in kind rather than in importance: “Decision-Making About the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179.
In my view, a similar interpretation needs to be given to the use of the term “additional” in relation to the UNCROC reference in s.60B. An examination of the Explanatory Memorandum to the 2011 Bill indicates that the government did not intend that the “additional” object in s.60B(4) should have the same effect as the objects in s.60B(1). This can best be understood by examining the role of the objects in the interpretation and application of Part VII of the Act. The best interests of the child are the paramount consideration in making parenting orders, and the determination of children’s best interests is achieved through consideration of the primary and additional factors listed in s.60CC. This is the engine room of decision-making in cases under Part VII of the Family Law Act. The objects and principles in s.60B have a less direct role. 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” (para 10). While the role is a contextual one, the objects do have a part to play in guiding the determination of the best interests of the child, that is, in assisting the Court to exercise its discretion. At para 65 of Goode and Goode, the Full Court wrote that:
The child’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.
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) only plays a role in the interpretation of the statute in the event of an ambiguity. This is how para 23 of the Explanatory Memorandum explains it:
Item 13 inserts a new subsection into section 60B 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 Australia’s 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.
That is, s.60B is merely a principle of interpretation and is not intended to guide the exercise of discretion. As an “additional” object, it has a much more limited role than the objects listed in s.60B(1). If that is all that is meant by this provision, then it might have been better to say this in plain English: “In the event of an ambiguity in a provision in this Part, an interpretation that conforms with the UN Convention on the Rights of the Child is to be preferred to one that does not” – or words to that effect.
2. Will the reference to the UN Convention change the law?
It might do so, but its application is likely to be both uncertain and contentious. The scope to be given to the “additional object” is likely to depend on how broadly or narrowly the court interprets the notion of ambiguity. The principle of statutory interpretation that in the event of ambiguity, an interpretation that promotes the purpose of the Act should be taken, is usually applied to interpret the wording of a specific provision which gives rise to a rule. Part VII of the Family Law Act is different. It gives structure to discretionary decisions in relation to parenting disputes. There is plenty of uncertainty about what Parliament might have intended in the interrelationship between different provisions – it is a complex piece of legislation – but little or no ambiguity within specific provisions. If a broader meaning of ambiguity is given to encompass situations where the intention of Parliament is not clear in how to interpret a combination of provisions, then there is likely to be greater scope to argue the application of UNCROC.
What is clear is that the reference to UNCROC cannot have the effect of overriding specific provisions of the Act. An illustration is in relation to the independent representation of children. Article 12 of UNCROC may state that children who are capable of forming their own views should be given a right of participation in all proceedings that affect them. But that cannot override s.68L(3) which provides that in Hague Convention cases, where the goal is the swift return of children abducted from another signatory country, an independent children’s lawyer shall only be appointed if the court “considers there are exceptional circumstances that justify doing so”. No ambiguity there. Nor is it likely that UNCROC could apply to Hague Convention proceedings in any other respect since the statutory provision authorising the Family Law (Child Abduction Convention) Regulations 1986 is contained in s.111B which is in Part XIIIAA of the Act and not in Part VII.
There are nonetheless possible applications of s.60B(4) as an interpretative provision. One issue is how it affects relocation disputes. If it is not clear how the primary consideration of the benefit of a meaningful relationship with both parents should be interpreted in the context of a relocation dispute when s.65DAA does not apply, but there are no child protection issues, then the Convention might be invoked to provide guidance. Article 9(3) provides that:
States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
That would appear to import an onus of proof in relation to relocation cases. The parent wanting to relocate would need to show that the relocation proposal still allows the child to “maintain personal relations and direct contact with” the non-resident parent on a “regular basis” or that such contact would be contrary to the child’s best interests. The term “direct contact” ought probably to be understood as “in person” contact, as in international usage it is to be contrasted with “indirect contact” orders which do not allow for face to face contact but allow for communication by letter, telephone or other media.
Another potential application is in relation to disputes between parents and non-parents such as a father-figure who discovers he is not the biological father, or a grandparent. Article 5 of the Convention says that States Parties shall respect the responsibilities, rights and duties of parents to provide appropriate direction and guidance to children, and Article 9 is also framed in terms of parents. Does this mean that a biological parent should in some way be preferred over a non-parent when it comes to disputes about parental responsibility? The Family Court has consistently resisted such an interpretation (see e.g. Mulvany & Lane (2009) FLC 93-404), but will the reference to UNCROC to resolve ambiguities now require that to be reconsidered?
Does s.60B(4) also have an impact upon the rights of lesbian co-parents? In Aldridge & Keaton (2009) 235 FLR 450 at paras 16-22, the Full Court questioned whether an “intended parent” (the language used in s.60H) is a parent within the meaning of the Act. There is clearly an ambiguity there, and it may be that UNCROC could be invoked to resolve that ambiguity by holding that a lesbian co-parent has lesser rights than a biological parent and that primacy should be given to the rights of a biological parent in the event of a dispute.
It is far from clear whether parliament intended any of this. What parliament seems to have intended was to launch a ship of interpretation onto the high seas knowing not its destinations, and allowing the wind and currents to carry it where it will. It is questionable whether this is a good way of promoting human rights. It may be better for governments to reflect on our international human rights obligations, decide on the policy implications in specific areas, and then legislate clearly for the desired outcome. That may make human rights advocates less excited, but it will certainly make it easier for litigants, their lawyers and judges.
Patrick Parkinson AM is a Professor at the Faculty of Law, University of Sydney. He is a specialist in family law and child protection, and his recent books include Family Law and the Indissolubility of Parenthood (2011) and The Voice of a Child in Family Law Disputes (with Judy Cashmore, 2008). In recognition of his service to the law, legal education, policy reform and the community, he was appointed as a Member of the Order of Australia (AM) in 2009.