Judith Troeth (Victoria, Liberal Party) Share this | Hansard source

Yes.

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The document read as follows—

SAME-SEX RELATIONSHIPS (EQUAL TREATMENT IN COMMONWEALTH LAWS —GENERAL LAW REFORM) BILL 2008

Possible Question

Senator the Hon Chris Ellison, Senator for Western Australia, wrote, on Friday 21 November 2008 to the Attorney-General, asking that the Attorney-General take five questions on notice for the Minister to answer during the Committee stages of debate of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws —General Law. Reform) Bill 2008.

Talking points

What are all the legal (and some practical) consequences of the expanded definition of step-parent? For example, if a single mother has a series of de facto relationships would each of the men with whom she has a de facto relationship become a “step-parent” of her child? Is there any minimum period of duration for the de facto relationship before the status of “step-parent” could be acquired?

What are all the legal and practical consequences of the expanded definition of step-parent?

• The definition, as amended, will include a current or former de facto partner of a parent of the child where he or she treats, or while a de facto partner of that parent, treated, the child as a member of the family he or she formed with the parent.
• The definition is being amended to remove its discriminatory effects in relation to ‘step-parents’ who are or were in a de facto relationship with a parent of the child. The definition is currently limited to persons who are a step-parent of a child because they are or were married to a parent of the child.
• Extending the definition will give greater significance to the relationship between such a ‘step-parent’ and a child in Family Law Act proceedings for a parenting order. It will also enable courts, where it is appropriate, to order the payment of child maintenance by the ‘step-parent’ who is or was in a de facto relationship with a parent of the child.

Is there any minimum period of duration for the de facto relationship before the status of ‘step-parent’ could be acquired?

• In the case of a de facto relationship, the step-parent would need to satisfy a strict threshold test. This test includes requirements that the relationship is of sufficient length;
• that the parties display a mutual commitment to a shared life; and
• that they have a public reputation as a de facto relationship.
• There is no minimum duration before a de facto partner acquires the status of a step-parent.
• However, on issues of de facto step-parent maintenance, a step-parent will only have a duty to maintain a step-child where the court has determined under section 66M of the Family Law Act that it is proper for that step-parent to have that duty.
• Under the Government amendments to section 66M(3)(b), one of the matters on which a court must have regard in determining whether it is proper for the step-parent to have a duty to maintain the child, is the length and circumstances of the relationship between the step-parent and the natural parent of the child.

Under Section 4 of the Act the definition of a “relative” for the purposes of Part VII of the Family Law Act 1975 includes a “step-parent”. Could the Minister confirm that the amendment to the definition of “step-parent” would consequently expand the number of people who would be defined as a “relative” under this provision?

• Yes, the amendment to the definition of ‘step-parent’ will carry across the paragraph (a) of the definition of ‘relative’ in section 4 of the Family Law Act.

Part VII includes Section 60B(2)(b) of the Act which provides that one of the principles underlying the objects of Part VII is that: “children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”. Could the Minister clarify whether this provision is intended to limit this right to refer only to those “grandparents and other relatives” who, for reasons particular to each child, are considered to be “people significant to their care, welfare and development” or is it intended to provide that “grandparents and other relatives” are automatically to be presumed to be “people significant to their care, welfare and development”?

• Grandparents and other relatives are examples given of persons falling in this category.
• Section 60B(2)(b) of the Family Law Act recognises as a principle underlying the objects of the Act that children have a right to a relationship with people other than their parents who are significant to their care, welfare and development.

Could the Minister clarify whether the provisions in Section 60M(3) of the Act as it would be amended by the Government’s foreshadowed amendments to this Bill, apply in any way to limit which “step-parents” would be covered by the provisions of Section 60B(2)(b) of the Family Law Act 1975? Or are these more stringent conditions only relevant to the question of a duty to maintain and not at all relevant to the question of the right of the child “to spend time on a regular basis with, and communicate on a regular basis with” a step-parent?

• Section 66M is directed to the special rule applying to the payment by a step-parent of maintenance for a child.
• Neither section 66M nor 66M(3) in any way limit the persons who are step-parents under section 60B(2)(b).
• Section 66M does not impact upon the question of the right of the child to spend time on a regular basis with, and communicate on a regular basis with, a step-parent.

Section 13C(3) of the Act provides that in relation to “family counselling, family dispute resolution and other family services” the court may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings”. A note to this subsection states: “For example, the participation of children, grandparents or other relatives may be encouraged”. Could the Minister confirm whether the term “relatives” in this note would consequent to the Government’s proposed amendment to the definition of “step-parent” be expanded to include former de facto partners of a child’s parent?

• Section 13C provides that a court, when making an order during proceedings under the Act, may at any stage during the proceedings make an order for parties to attend family counselling, family dispute resolution or to participate in other family services.
• Subsection 13C(3) provides that the court order may require parties to encourage the participation of specified other persons who are likely to be affected by the proceedings.
• Whether or not a court would make an order under section 13C, which is in Part II IB of the Act, encouraging participation will depend on whether the person ‘is likely to be affected by the proceedings’ and is not limited by the definition of “relative” for the purposes of Part VII of the Act.
• The note below subsection 13C(3) only provides an example of the kinds of persons who could in a case be people who are ‘likely to be affected by the proceedings’.