5.9The Family Law Council recommended the adoption of a change in terminology away from the custody/access model, so as to “adequately ... reflect the significant change in philosophy which is proposed by the amendments”.600 Orders should be called “parenting orders”. These orders would be made “for the purposes of settling arrangements in respect of the child’s residence”, “for continuing contact” with both parents, and would contain any “special purpose” arrangements which the court considers necessary. This would cover the type of orders referred to as “specific issue orders” and “prohibited steps orders” in the English legislation.601 The Council also recommended that the concept of “welfare” be replaced by “best interests”.602 It referred to Article 3 of the UN Convention of the Rights of the Child which used this concept and the fact that “the term ‘welfare’ has particular connotations which detract from its use in this context”.603
Family Law Reform Act 1995
5.10This Act adopted the recommendations of the Family Law Council’s report on the Children Act 1989. The Explanatory Memorandum of the Bill stated that the rights of custody and access tended “to foster notions of ownership in children.” The Family Law Reform Act came into force on 11 June 1996.
5.11Section 60B of the Act provides that:
“(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.”
600 Recommendation 3 of the 1994 report.
601 Section 8 of the Children Act 1989.
602 Recommendation 4 (paragraph 49) of the 1994 report.
603 Ibid at paragraph 40.