Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

I do not quite see the conflict that Senator Siewert has suggested. The primary considerations are there, in (2)(a) and (b) of 60CC, and they are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

They are different criteria; they are assessed differently because you look for different factors in determining those. Of course they are two primary considerations and where there is a conflict it is then for the court to determine the result of that conflict. That is, after all, why we have a Family Court, and we give it as much guidance as we can with this legislation. But they are two fundamental pillars, if you like. Where they are in conflict with each other that is for the court to decide. But if you can satisfy both of those and the criteria are met then you are well on your way to determining what is in the best interests of the child, and it builds a solid foundation for a finding which is based in the best interests of the child.

Senator Siewert, as I understand the question, you are saying, ‘How can you have these two fundamental pillars where they could be in conflict with each other?’ Of course with human affairs that is always on the cards and I have seen it happen: where a child has a very good relationship with a parent who has been abusive to them. I have seen that because it is part of the unconditional love that a child can give a parent and it is, I think, quite tragic when you come across that. But the fact remains that both of those are fundamental pillars in the consideration of what is in the child’s best interests. I am not saying that one should be greater than the other—it is a balancing which is required of the court and it is a difficult question. There is no question about it and I would say that I am not being arbitrary in the way I say that one should overtake the other—that is not the case. They are two essential pillars and they should provide guidance to the court and, where they are in conflict, the court determines that.