Natasha Stott Despoja (SA, Australian Democrats) Share this | Hansard source

I am happy to grant leave for Senator Fielding, particularly under the circumstances. As I have discussed formally and informally with other people in the chamber, I seek leave to incorporate my response to Senator Fielding’s amendments. If leave is not granted, that is okay; I will stand up and have a rave, but I wish to incorporate my comments on Family First amendments (1) to (10).

Leave granted.

The response read as follows:

The Democrats support the need for a review of this legislation. That is why we introduced a review provision.

We recognise Senator Fielding’s intention but we think the review is limited.

The Democrats primary criticism of this review proposal is that it is to be conducted by the Minister. The Democrats position is that this review should be independent.

However a Ministerial review is arguably better than no review so we support the amendment.

The Democrats are unsure as to the appropriateness of Family First amendment (2)—or the need for it.

We have concerns about how or whether it would impact on the court’s application of the best interests test.

The objects of Part VII are already set out in new section 60B and new section 60B also sets out the principles underlying the objects.

The Democrats have some concerns about this amendment.

We are unsure what Senator Fielding’s intention is in stating that the provision declares the ‘public policy of the Commonwealth’—what exactly does this means?

The public policy amendment also only refers to the time ‘after separation or divorce’.

Senator Fielding’s public policy initiative conflicts with new section 60B(2) which refers to children having the right to know and be cared for by their parents—during the marriage, on separation and irrespective of whether their parents have ever been married or have ever lived together.

It is hard to see where Family First’s proposed section 61DC or amendment (3) is proposed to fit into the Act. It is hard to determine how other sections of the bill would operate if proposed section 61DC is agreed to.

New section 61 DA already provides that in making a parenting order, the court must apply the presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility.

New section 65DAA provides that where a parenting order is to provide for equal shared parental responsibility, the court must consider whether the child spending equal time or substantial and significant time with both parents would be in the child’s best interests.

Proposed section 61 DC actually undermines the other provisions of the Bill by inserting a hierarchy that starts with the assumption that the first preference should be that the child is to live with both parents jointly.

In contrast, the Bill only requires a court to consider equal time if it proposes to make an order for equal shared parental responsibility.

I would also ask what ‘jointly’ means this amendment is unclear.

Additionally, proposed section 61DC(2) says that if the court makes an order in favour of one parent only, then they must consider the factors set out in (a) and (b) as well as any other factors.

Does this mean that if the court makes a joint order, these factors do not have to be taken into account?

As to Senator Fielding’s proposed section 61DC(3) the Democrats would like to know how this operates in relation to 61F of the bill that refers to the needs of Indigenous children and the recognition that the court must give to kinship obligations and child-rearing practices of a child’s Indigenous culture.

The Democrats suggest that proposed section 61DC(3) may have the effect that a parenting order cannot be made on the basis of a child’s race when this may be an appropriate order to make because of a child’s Indigenous heritage.

Amendment (4) again gives preference to joint living orders over orders that a child live with one parent only. The Democrats query whether this is necessary.

Family First Amendment (5) provides that in considering an application for the modification or termination of a parenting order, the court shall recognise ‘evidence of substantial and repeated failure of a parent to adhere to the parenting order.

The Democrats are unclear as to whether proposed section 61DE suggests that an over-arching factor in a court’s consideration of an application for modification or termination of a parenting order is substantial and repeated failure to adhere to the order.

If it is an overarching factor, it makes no allowances for reasonable excuses—in contrast to the compliance regime—and appears to be weighted against ‘custodial parents’ whose failure to adhere to orders may be due to concerns about violence, child abuse or abduction.

The Democrats believe this is completely unacceptable.

In relation to amendment (6), proposed section 61DF is designed to affect the best interests test in relation to parenting orders. It states that there is a rebuttable presumption in an application for a parenting order that it is in the child’s best interests to maximise parenting time and involvement with children it appears that ‘maximising’ means ensuring as far as possible that each parent has 50% of parenting time.

This is quite different to new section 61 DA which talks about equal shared parental responsibility which entails joint decision-making about major long-term issues in relation to the child. The Democrats believe this amendment is exceptionally divisive and we oppose it.

Family First’s proposed section 61 DG—or amendment (7)—sits uneasily with the rest of the Bill.

Its philosophy by providing that pending the making of a parenting order a child shall, as far as practical, spend time with both parents equally (presumably, this means living with each parent equally).

This provision will only be displaced where it is shown to be detrimental to the best interests of the child.

So, what this provision is really saying is: we don’t care that this arrangement may not be good for the child—as long as it’s not bad for them!

It is unclear whether this provision relates to the period before a parenting order is made or before an interim parenting order is made.

To date, the Family Court’s approach is that when it makes an interim order, the best interests of the child are the paramount consideration and those interests will normally be met by retaining stability for the child pending a full hearing.

The court will not disrupt a child when it is in a secure arrangement—it will maintain stability. The Democrats support this approach and reject this amendment.

Proposed section 67MA—or Family First amendment (8)—states that in the absence of an order to the contrary and in the absence of consent of the other parent, if a parent who has a child living with him or her plans to change the location of a child for more than 30 days, he or she must notify the other parent and state the reasons for the change.

There are some practical difficulties with this amendment.

Firstly, the amendment seems to encompass both permanent moves and temporary moves. Would this include holidays?

Secondly, the fact that the notice must be given at least 45 days before the change in location is problematic. For instance, in some cases it may not be possible for a parent to know this far in advance that their location will change.

The Democrats also make the point that this amendment appears gender neutral. But—if it continues to be the case that children will continue to live mostly with one parent—this usually being the child’s mother, then it is arguable that the proposed amendment will also—primarily enable men to restrict and control women and will not take account of the fact that women may need to exercise residential mobility for valid reasons.

The Democrats position that this provision is unnecessarily adversarial and it may also increase the potential for litigation.

Family First amendment (9) operates with the intention of providing ‘non-custodial’ parents a right to their children’s medical, dental, law enforcement and school records.

The Democrats feel that this amendment omits consideration of the duty of confidentiality health carers have to their clients.

It also ignores the ability of children who are legally competent, who may not wish that their records not be disclosed to a third party which may include a parent.

As Democrats Privacy Spokesperson I object to this inclusion of this provision on the basis that I do not think that the Family Law Act is an appropriate vehicle for considering this issue.

The Democrats oppose this provision—which once again is promoting the rights of parents over the rights of children.

This provision is offensive in its application.

New section 117AB allows for costs for false allegations or statements in proceedings and the main reason that this provision has been objected to is because of the impact this may have on victims of violence.

This provision has ignored the committee’s recommendations. It has ignored the wide body of evidence provided at the inquiry about the vulnerability of victims of family violence.

Section 117AB could apply to both parties in proceedings but this provision targets victims of child abuse or family violence specifically.

The Democrats are keen to see any evidence that supports the need for this provision? Perhaps Senator Fielding has evidence to prove it that courts have been inundated with false allegations?

I have been informed by a representative of a peak, experienced body of family law practitioners that even if a finding is made in the Family Court of family violence—it is usually deemed to be genuine and based on a genuinely perceived protective purpose.

The Democrats reject this amendment.