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THE LAW REFORM COMMISSION OF HONG KONG - page 130 / 360

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Chapter 5

Comparative Law: Australia and New Zealand

5.1This chapter examines how substantive provisions in legislation can protect the needs and interests of children, including their separate representation.  There is merit in separating the substantive issues of guardianship and custody from the way that disputes are resolved by the adversarial system or from alternatives such as mediation, which will be dealt with in chapters 7 to 11.  This chapter will deal with the important recent reforms in Australia that mirror some of those of the Children Act 1989.  It will also cover some New Zealand reforms.  

Australia

Australia and the Children Act 1989

5.2  The Family Law Council of Australia issued a report in March 1994 on the UK Children Act 1989.589  It indicated that many of the objectives of the Children Act 1989 were consistent with the general aims of the Family Law Council as outlined in its previous report on Patterns of Parenting after Separation.590  These were:

The ongoing priority of the “welfare” principle,591

the non-order approach,

shared parental responsibility, and

appointment of guardian in specified circumstances.

5.3The Council recognised that “it would be unrealistic to assume that by changing the terminology used in the Family Law Act [1975] separating parents who had previously been unable to co-operate would begin to do so overnight.”592

5.4The Council divided parents into three categories:

“(1)separating parents who are able to make arrangements for the ongoing care of their children;

(2)separating parents who will need assistance through mediation, conciliation and other support services in making arrangements for the ongoing care of their children;  and

589 In its report entitled The Operation of the (UK) Children Act 1989.

590 Paragraph 17 of the report on The Operation of the (UK) Children Act 1989, March 1994. The report, Patterns of Parenting After Separation was published in April 1992.

591 Later they recommended a change to “best interests” to be consistent with international conventions.

592 Paragraph 23 of the 1994 report.

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