Thursday, 30 March 2006
Family Law Amendment (Shared Parental Responsibility) Bill 2006
Bill—by leave—taken as a whole.
I move Democrat amendment (1) on sheet 4866 revised:
(1) Page 3,(after line 11), after clause 3, add:
4 Review of operation of Act
(1) Within 2 years of the day on which this Act receives the Royal Assent , the Minister is to arrange to receive from the Australian Institute of Family Studies a report which the Institute has prepared on the review of the operation of the effectiveness and implications of the amendments made by this Act, with particular regard to:
(a) the impact of mandatory dispute resolution; and
(b) the extent to which the following people have equal access to services:
(i) people in rural or remote areas;
(ii) people with culturally and linguistically diverse backgrounds;
(iii) indigenous people;
(iv) people with health or mental health issues;
(v) people with low incomes;
(vi) people without access to technology;
(vii) any other group identified by the Institute; and
(c) any change in exposure to violence and abuse of both children and adults; and
(d) how effective the changes have been in achieving better outcomes for children, particularly the presumption of equal shared parenting and the new structure established by this Act for determining children's best interests.
(2) The Minister must cause a copy of the report to be laid before each House of the Parliament with 5 sitting days of that House after the day on which the Minister receives the report.
This amendment is in relation to a review of the operation of the act. What the Democrats would like to see is a review of the impact of the changes brought about as a consequence of this bill within two years of its commencement. This amendment has been motivated by concerns that have been expressed across the board about the potential impact of the changes contained in the legislation. This amendment will implement a comprehensive ambit of review. It will review the impact of the regime of mandatory dispute resolution, the change in exposure to violence and abuse of both children and adults, and the effectiveness of the bill in generating better outcomes for children. It will also look at a range of target groups to identify whether access to services has indeed been equal.
The review is proposed to be undertaken by the Australian Institute of Family Studies, who have the mandate under the Family Law Act to undertake research associated with the Family Law Act. The Democrats hope this review will help identify areas in which the bill is lacking, with the aim of improving the legislation to create better outcomes for families.
I do not think there is any failure to understand that this is a complex, significant and at times very emotional area of the law. Some of us have expressed a number of concerns with this legislation and we hope to rectify or ameliorate those during tonight’s committee stage. Regardless of the outcome of this deliberation tonight and whether amendments are passed or not, there is very good reason to analyse and review the changes made within a period of, say, two years, and that is the effect of the Democrat amendment. I commend it to the chamber and hope that it will receive support from the other parties.
We are not minded to support the amendment, although not because we do not seek to have reviews in legislation—in fact, we supported one today. However, we do not support one in this area for a couple of reasons. It is a good idea to have reviews. In this area, it is more important to have continuous reviews to, in short, ensure that the family law is not something that is simply shelved after today and then returned to in two years time. People who live with this on a daily basis and others who are interested, including political parties, should be able to have input to ensure that this area of law is not static.
We need to ensure that the government’s response cannot be, ‘What we’ll do is put that in the basket, think about it and deal with it when the review is up.’ We would not want them to put it off until the review period so changes which might be required in the short to medium term do not occur. Even after that review period was up, you could end up with the government continuing to review it for a time. By the time you came back, three years might have gone by.
You have already indicated that the Australian Institute of Family Studies is conducting a review. You might expect the government to pick up, have a look at or develop anything that comes out of that. There will be other reviews, I suspect. What I would not want the government to do in response to some of those studies and reviews is to simply say, ‘We’ll look at it when it is up for review.’ I know that does not meet some of the concerns you have, Senator Stott Despoja, but in short we are not going to support the amendment. We think it is something that, as I have said, should be constantly reviewed, and I have outlined the reasons—and in truth I think they are compelling reasons—why in this particular area it is important to have an open mind.
While I agree that there is a need for constant review, unfortunately I am not that confident that in fact we will have the necessary reviews, because there are already some significant flaws in this bill that the government is letting go through. There should be support for a clause of this nature to ensure that that review happens. Ideally, I would like to see it constantly reviewed—and Senator Ludwig indicated that that would be Labor’s preferred option—but I do not have any confidence that that in fact will occur. I am deeply concerned, as I have expressed in my speech on the second reading, about some of the implications of this legislation. I believe that it is vitally important that a review of this nature is built in to the act, so we will be supporting this amendment.
The government does not support this Democrat amendment. While the government recognises the value of research and evaluation in providing a sound evidence base on which to build future policy, it does not believe that a review which is locked in by legislation is appropriate. In response to recommendation 55 of the report of the House of Representatives Legal and Constitutional Affairs Committee on the exposure draft of this bill, the government agreed with a need for appropriate monitoring and evaluation of the effect of the legislation. I agree with Senator Ludwig that continual evaluation is more appropriate.
I should also mention the proposed Family First amendment (1). Senator Boswell is here in the committee today moving amendments on behalf of Senator Fielding from Family First as Senator Fielding is not able to attend the Senate due to ill health. Family First amendment (1) seeks a review as well. In that regard, we would say to both Family First and the Democrats that we will undertake an initial review of the bill in three years. That is an undertaking I can give to Senator Stott Despoja, and to Senator Boswell to convey to Senator Fielding. I appreciate that both those amendments are concerned with keeping this under review and scrutiny, and the government is not averse to that—this is just about the way we do it. We believe in constant evaluation. We also give the undertaking that in three years there will be an initial review of the legislation.
We should note that if there was to be a review in two years it would not take into account the full impact of the expansion in the funding of services, including family relationship centres, provided in the 2005-06 budget. We think three years is better, as that gives time for those effects to be felt. For those reasons, we oppose Democrat amendment (1) and we can foreshadow that we will oppose Family First amendment (1) as well.
I thank the minister for that undertaking. While I think everyone agrees that the notion of continuous review and assessment is a good thing, of course that is not actually enshrined in legislation specifically dealing with these changes. So, nonetheless, I thank the minister for that undertaking in this public forum. I hope that that will be a public and independent review that will, of course, be tabled in the parliament and indeed, the Democrats would have been prepared to support Senator Fielding’s amendment as a backup. Having said that, I thought that his amendment was somewhat more narrow than the Australian Democrats’ amendment. Nonetheless, I understand the numbers in this place and I think our views are made clear.
The Democrats oppose item 3 of schedule 1 in the following terms:
In relation to this schedule dealing with family violence, the Australian Democrats have made clear in our second reading contributions—and, indeed, in our Senate committee report—that we believe that the proposed introduction of a new definition of family violence is problematic. We would go so far as to suggest that the new definition will potentially do more harm than good. We believe that it may actually have an opposite effect: it may actually deter victims from alleging violence if they feel that they are unable to prove it.
We also find the proposal of a so-called objective definition a little extraordinary when it is clear from many studies and research into domestic violence that victims are usually in the best position to identify risks to themselves or to children. Mr Temporary Chairman, you may be aware that the Democrats disagreed with the chair’s report in relation to the legislation—the Senate Legal and Constitutional Legislation Committee’s report—over this provision, as we believed it would definitely be preferable to not implement a definition before examining the issue in depth and coordinating a national and uniform approach so that federal, state and territory laws can achieve consistency.
I think you will find that in upcoming amendments we deal with some of these issues but, at this stage, we do not support the proposed new definition of family violence. I think someone made a comment the other day after I had given my second reading speech that perhaps a better definition is ‘criminal assault in the home’. I do not know if we treat even the term ‘family violence’ differently from the way we treat other forms of violence and abuse. Nonetheless, I do not agree with the current provision in the legislation and I would hope that it would be opposed.
Mr Temporary Chairman, you will see that we have an identical amendment. We are deeply concerned about the impact and the combination of not only this amendment but other amendments within this bill. I agree with Senator Stott Despoja that what will happen is that incidences will not be recorded. It will potentially be harder for people to substantiate incidences of family or domestic violence.
There is a substantial body of evidence that indicates the problem with domestic violence. I am extremely distressed, I might say, that not during the debate in here but during the wider public debate there have been a lot of claims made that try to diminish the occurrence and the incidence of domestic violence. I had thought that over recent years we have been making progress, gradually, on domestic violence and I think this has substantially set back the issues of domestic violence and actually exposing it in the family. In the report the Greens disagreed with the majority view of the committee.
The committee did express concerns about the issues around domestic violence. We are aware that there is a study ongoing and we believe it is most appropriate that we leave the existing definition of family violence until at least this study is done so that we have some new research that indicates the potential impact on domestic violence. There have been a number of, I think, flawed analyses of the impact of domestic violence that downplay it. As I said, the combination of this definition and a number of other provisions, particularly the issues over false allegations, and we will come to that, will seriously discourage women—and, let us be plain, in this instance we are talking about women—from bringing this issue up. They will be subjected then to compulsory mediation where they will not be able to express themselves adequately. They will be in situations where they are extremely distressed and in fear. I think this definition will significantly add to that provision.
There is no evidence that substantiates that women make false allegations nor is there evidence that where claims of domestic violence are substantiated that affects the contact outcome. The evidence does not exist for that, so I am a bit bewildered as to why so much effort has been put into trying to downplay the issue of domestic violence. That is what I believe is happening. We should be actually dealing with it in a full and frank manner and exposing it, and not leading to situations where women are going to be in fear and will feel like they cannot bring up this issue and adequately address it. We believe that the definition of domestic violence at this stage should stand as it currently is. If the studies show that there is a need to further define or redefine it, then that comes back after the studies in progress have been done. We support the Democrat amendment, as it is the same as our amendment.
In this instance, we support the Democrats’ amendment as an alternative to our own. We have our own amendment later on which seeks to effect what Labor think is a slightly improved outcome. This is further than what the government has proposed. Labor agree that the current subjective definition is preferable to the proposed objective definition for reasons that I will not outline now. I will take the opportunity when we get to Labor’s amendment on this area. We can then explain why our definition is deserving of support. Hopefully, the government may also see the benefit of having a better test than the one that is currently in the bill.
The government opposes this amendment and the Greens amendment as well. I direct senators’ attention to government amendment (1), which will add a note to the definition of family violence. The note that we will be attaching reads:
A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
That is a clarification, if you like, of the definition of family violence. The government is very clear that there should be an element of reasonableness in the situation. This change has been implemented in response to a recommendation of the report of the House of Representatives Standing Committee on Legal and Constitutional Affairs on the exposure draft of the bill and was the subject of significant consultation by the Attorney-General’s Department.
The government amendment that I have foreshadowed makes the situation even clearer and substantially implements recommendation 5 of the majority report of the Senate Legal and Constitutional Affairs Legislation Committee. This will ensure that, where there is a history of violence, it is intended that this be taken into account in determining what is a reasonable fear or apprehension. To rule it as being completely without accommodation of unique circumstances which might attach to a particular case is unfounded, because we are asking what is reasonable in the particular circumstances of the person. Is it correct to say, if a person is being unreasonable, you accept their version? If a person is being unreasonable about fear of violence, which they may well have overstated, should the definition attach? We do not believe so. We believe there should be this aspect of reasonableness, which was supported by both the House of Representatives committee and the Senate committee.
The family violence strategy announced on 26 February 2006 will support changes to the law by focusing on ways to improve the processes by which allegations of violence raised in family law proceedings are handled so that they are dealt with quickly, fairly and properly. I believe that demonstrates further the government’s commitment to dealing with the question of family violence. I would certainly reject any claims that this government have not been mindful of the issue of family violence, which has been of increasing concern in Australia in recent times. For those reasons, the government are opposed to both Democrats amendment (3) and Greens amendment (2). We believe that our note in government amendment (1) will clarify things even further.
My concern also extends to the use of the word ‘reasonable’. I cannot quote this directly because I am remembering off the top of my head, but evidence was given at the committee hearing around the issue of reasonableness. One of the examples given was of the situation in which an ex-partner had harmed the family cat in quite a distressing manner which was clearly intended to intimidate. The point that was made later on was that, when the partner was about to go into Family Court, they were sent a card with a kitten on it. Any reasonable person may think, ‘What a nice gesture; they got a card with a kitten on it,’ whereas the person who got the card from their ex-partner knew the message that was being sent and responded in fear. I ask whose version of reasonable we are talking about. If you saw that, on the face of it you might think that was a nice reconciliation gesture, but the person receiving the card knew the message that was intended. The point I am trying to make is that it is not objective; it is subjective, and it is relative to the case. While I do acknowledge that it is an attempt to deal with the issue, I do not believe that the amendment that the government is moving meets those requirements.
Now we are debating government amendment (1) with the note that I mentioned where we state whether a reasonable person in those circumstances would fear or be apprehensive about his personal wellbeing or safety. The question of a reasonable person in those circumstances fearing for their safety is not something which is inappropriate, because we are talking in the particular circumstances which would necessarily address the set of facts that Senator Siewert has outlined. It would not be one which is just taken at face value where people would say: ‘You got the card. Isn’t that nice?’ The note that we are adding to our definition requires further inquiry as to the particular circumstances. That means surrounding events and occurrences could be looked at, which is exactly what Senator Siewert has mentioned.
We do not believe in a totally subjective approach, because that would mean that anybody could make an allegation and be taken as having some substance without even having to go any further. Even at law in crime and civil jurisdictions we talk of a prima facie case in crime and we talk of the average reasonable person—the ‘reasonable man’ test—in terms of what is negligence. I think you have to have a balance between subjectivity and objectivity if the administration of justice is to be accommodated.
by leave—I move Democrat amendments R(4), R(26) (27) and (28):
R(4) Schedule 1, item 3, page 4 (lines 18 to 22), omit the definition of family violence, substitute:
family violence means one of the following acts that a person commits against another person with whom he or she is in a family and domestic relationship:
(a) assaulting or causing personal injury to the person;
(b) kidnapping or depriving the person of his or her liberty;
(c) damaging the person’s property, including the injury or death of an animal that is the person’s property;
(d) behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person;
(e) causing the person or a third person to be pursued:
(i) with intent to intimidate the person; or
(ii) in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, the person;
(f) threatening to commit any act described in paragraphs (a) to (c) against the person.
R(26) Schedule 6, item 1, page 136 (line 19), omit paragraph 68N(b).
(27) Schedule 6, item 1, page 140 (lines 6 to 9), omit paragraph 68R(3)(b).
(28) Schedule 6, item 1, page 140 (after line 19), after paragraph 68R(5)(b), insert:
(ba) have regard to the need to protect all family members from family violence and the threat of family violence and, subject to that, to the child’s right to spend time and communicate with both parents and other people significant to the child’s care, welfare and development, provided it is not contrary to the best interests of the child; and
These amendments relate to the issue we have been discussing—the definition of family violence. The first amendment, R(4), proposes an alternative definition of family violence modelled on a definition from the Western Australian legislation. They have domestic violence legislation that has been updated and removes the objective assessment that is currently in this legislation, and it includes a range of prohibited behaviours. So the definition includes assault, kidnapping, property damage including the injury or death of an animal that belongs to the victim, intimidating, offensive or emotionally abusive behaviour, or threatening to commit any of these acts.
Amendment R(26) is designed to strengthen the operation of section 68N. It removes paragraph (b) to avoid the risk that referring to the objects and principles as they are currently drafted will expose people to family violence.
Amendments (27) and (28) amend section 68R of the bill which deals with the power of the court in making a family violence order in order to revive, vary, discharge or suspend an existing order, injunction or arrangement under the Family Law Act. Amendment (27) omits paragraph 68R(3)(b). The Democrats believe this provision is unnecessary. The paragraph requires the provision of new material to a state court before it can change a family law order. The Democrats believe that this may operate to obscure a history of family violence and this, in turn, means that the new incident will not be seen in the context of that history. The Democrats believe that all evidence should be able to be adduced so that a court may understand the very complete nature of the relevant violent relationship. Amendment (28) adds paragraph (ba) to subsection (5) of section 68R. This subsection deals with the relevant considerations that the court must have regard to in exercising the power under this section. The text of paragraph (ba) makes the reason for its inclusion quite obvious. It says that the court must:
have regard to the need to protect all family members from family violence and the threat of family violence and, subject to that, to the child’s right to spend time and communicate with both parents and other people significant to the child’s care, welfare and development, provided it is not contrary to the best interests of the child; ...
This paragraph clearly provides a further safeguard for children and I hope that it will be supported by the Senate.
We do not support this amendment. This is one of those definition areas where the devil is in the detail. We appreciate the intention of the first of these amendments, to introduce a conduct based definition of family violence. Labor have been advocating for the relevant parties to have a serious look at this type of approach. It is similar to approaches that have been adopted in other state domestic violence legislation. However, on the government’s proposal we have argued that it would have been better if this issue had been left until the Australian Institute of Family Studies have completed their study and considered the various alternatives.
The other amendments deal with interaction between federal parenting orders and the state family violence orders. We are not inclined to support changes in this area without more consideration—in other words, we are not prepared to do that on the floor of the parliament without having a more considered look at these issues. We have not had the opportunity of hearing from the states as to whether they share concerns with these amendments or they support them. Of course, this area does involve significant interaction between state and federal law. It is area which should not be settled hurriedly or on the run; it should be given sufficient time for a considered response. After the Institute of Family Studies have had an opportunity to look at this area Labor would be more hopeful that we would end up with a better position than what is being proposed by the government. Until that time we are not prepared to support these amendments.
The government opposes this for a number of reasons. Firstly, the definition that we have is rather prescriptive. I can appreciate what Senator Stott Despoja is trying to drive that here, but we believe that you need a compendious definition which is capable of absorbing the varying human circumstances that one comes across in family law. Having practised in family law to some degree, I must say that you are always amazed at the different circumstances you do come across.
I will give you one example from this definition. It says:
damaging the person’s property, including the injury or death of an animal that is the person’s property;
You can instil fear in someone without injuring an animal owned by them. I certainly could imagine circumstances where you could inflict injury or even worse on an animal and display it in such a fashion as to instil fear in someone. I think the film The Godfather did that very well with a horse’s head. That just demonstrates how, when you have such a prescriptive definition, you can distinguish things and say, ‘This is in and that is out.’ By having a prescriptive list you can exclude things. I just think that it is unwise to do so. We have taken on board the recommendations of both the Senate and the House of Representatives committees. I think that it is an appropriate response from the government. For those reasons, albeit I can understand Senator Stott Despoja’s line of argument, we believe that our definition is more appropriate.
That the amendments (Senator Stott Despoja’s) be agreed to.
(1) Schedule 1, item 3, page 4 (lines 18 to 22), omit the definition of family violence, substitute:
family violence means:
- conduct, whether actual or threatened, by a person towards, or towards property of, a member of the person’s family that causes that or any other member of that person’s family to fear for, or to be apprehensive about, his or her personal well being or safety; or
- conduct, witnessed by a child, in which a person intentionally causes physical or psychological harm to a member of the person’s family.
This amendment deals with the definition of family violence. We would make the case that the position we are putting forward is an improved one. This amendment does two things—firstly, it reverts to the existing definition of family violence and, secondly, it adds an alternative definition that makes it clear that circumstances in which a child witnesses violence are included the definition of family violence.
This issue, of course, is very important to Labor. We are very concerned that the government is making a change to the definition of family violence without much consideration of its consequences. We are particularly mindful of the impact that this change will have in the context of compulsory mediation. It is unreasonable, Labor believes, to force people into negotiation with someone they are terrified of. It does not matter whether a court would consider that fear to be reasonable or not. If the person feels fear, it would certainly affect the outcome and fairness of the mediation. That is simply plain. To think otherwise, I think, misses the point. Cases such as these would clearly benefit from the structured and formal environment of the courtroom.
We are concerned that this change to the definition could put some circumstances of family violence beyond the reach of the court to consider. The Senate committee heard evidence about the types of cases that could in fact be affected—for example, those which have involved a long pattern of threatening or menacing behaviour in which any one incident might not be considered to reasonably engender fear. We need to be certain that the courts are able to deal with these sorts of cases appropriately.
Labor’s view, therefore, is that this is another issue which should be left until the AIFS has had a chance to consider the issue. It is not integral to this bill. There is no excuse for acting too hastily. The government does have the opportunity to not proceed with that and to in fact adopt Labor’s position. In particular, we would like to see some serious consideration of a conduct based test that focuses on the behaviour of the perpetrator of violence, not on the reaction of the victim. Similar approaches are used in the states and should be considered at a federal level.
The second part of this amendment deals with the circumstances in which children witness physical or psychological harm intentionally committed against family members. It would give due recognition in the law to the harmful effects to children of witnessing family violence. The House committee heard that this is a particular problem with the current law. We see no reason that this simple amendment should not be addressed at this opportunity. We therefore seek the support of the government and minor parties.
Senator Ludwig will have the support of the Australian Democrats for this amendment. I must admit that I was a little confused by Senator Ludwig’s earlier remarks when he opposed the Democrats definition partly on the basis that there should be the inquiry or review and that the institute should be given time to report before we made these changes. But I do understand now in the context in which he has put forward the ALP amendment. It indeed seeks to return to a situation where, certainly for a start, there is the removal of the objective element.
I support the amendment. I think the Democrats’ definition, modelled on the Western Australian legislation, was better. I actually thought it was more of a compendium, to use the minister’s terminology, and not prescriptive in some respects, as the minister claimed. But I will not reflect on a vote of the Senate. Having said that, I do believe that our amendment was preferable. I believe that this amendment is certainly preferable to the legislation as it currently stands.
I have already outlined some of the concerns that we have with this. I think we are trying to address this in a very clinical way, but I want to make it very clear that this is not a trifling issue. This is not a mere issue of terminology and semantics. This is where laws change lives. This law and this change will affect lives. It will affect some of the most powerless people in our community—usually women and children. I do not care what gets said about me on the websites tomorrow for saying that. The reality is that these are the people we are talking about. We are addressing this in the most clinical fashion, because that is our job and role.
I want to make it very clear that family violence and criminal assault are of great concern to many of us here. I am scared that the impact of this change will be one that is quite devastating. Therefore, I seek to see these changes made. I recognise that my amendments on behalf of the Democrats have failed, but I certainly hope that, in a last-ditch attempt, this Labor amendment will not fail.
The government is the first to concede that a child witnessing violence is totally undesirable; it is appalling that a child should be in those circumstances. But, as Senator Stott Despoja said, we should look at this in a dispassionate manner and look at a definition which will serve the interests of justice. That demands that we get definitions right. No-one who goes into the Family Court has a mortgage on right or wrong. We who stand outside and look in are lucky to be in that position, if I can put it that way. Certainly, my experience has been that you can never prejudge matters where you have human affairs involved, being as they are. So I would not seek to prejudge any particular group of people or in any way make an assessment as to where the rights and wrongs lie in relationships between husbands and wives. But I do say that we should have a definition which works.
We believe that the opposition’s proposal is unnecessary. This was a matter which was considered by the Senate Legal and Constitutional Affairs Legislation Committee. They did not see any merit in adding this clause to the definition. The government’s existing definition would cover a situation where witnessing violence causes a child to fear or be apprehensive for their own safety. I stress that. The government’s definition allows for a history of violence to be taken into account. We are saying that once you get into a listing of circumstances you do so at your peril to the extent that you become prescriptive in your definition. We have a definition—with a note which hopefully will be passed and attached—which can stand the test of time and the administration of justice.
I believe that the concern that the opposition has is a legitimate one, and Senator Ludwig put his point clearly. But we have already accommodated for that in the broad definition that we have in the bill and also in the note that I will move at a later stage. I repeat that, in the government’s definition, a situation where witnessing violence causes a child to fear or to be apprehensive for their own safety would be covered. Furthermore, the government’s definition would allow a person’s circumstances, including a history of violence, to be taken into account. It is for that reason that the government does not support the amendment sought by the opposition. I stress that, whilst there is a great deal of concern for women and children and the position they can find themselves in, there are also men who are in the family law system. They should be remembered as well. We as a government have a duty to make sure that our definitions apply to all Australians, be they young, old or of whichever sex, and that they will serve the administration of justice in a manner which works and is fair.
I move Democrats amendment (2) on revised sheet 4866:
(2) Schedule 1, page 4 (line 2) to page 34 (line 7), omit “equal shared parental responsibility” (wherever occurring), substitute “joint parental responsibility”.
This amendment changes any references in the legislation from ‘equal shared parental responsibility’ to ‘joint parental responsibility’. As has been commented on in the speeches in the second reading debate and in the Senate committee stage, the use of the term ‘equal’ has been of concern. It has been criticised widely. It is quite a divisive term in some respects, in that it focuses more on parents’ rights than on our responsibilities as parents. Parental responsibility should not be quantified. Children need qualitative approaches to parenting.
The Democrats feel that the use of the word ‘joint’ sends a clearer message to parents about a cooperative approach to parenting—where possible of course—instead of dividing them and pitching them against each other in a battle to be the winner in negotiations over their children. The intent of this legislation, as I understood it, was to try and provide a less adversarial approach and so less adversarialism in the system when it came to the issue of parental responsibility. I think that joint parental responsibility encapsulates that less adversarial approach much better than the terminology of equal. One seems to imply a quantitative approach as opposed to a qualitative approach, which is what we should be aiming for if our focus in this legislation is indeed the best interests of the children.
The Greens support this amendment for very similar reasons—and in fact have an identical amendment. We believe that the content of the legislation is, unfortunately, more about parents’ rights rather than children’s rights. We believe that where parents should be coming from is their joint responsibilities. The children must come first. We do not necessarily believe that the amendment the government is proposing will result in the best outcomes for children in all cases.
Most kids’ living arrangements are established at the point of separation and finalised without the need to go to court, and those arrangements do not change afterwards. With respect to responsibilities and doing things for children, it is not about control. I am deeply concerned that a lot of the debate happening outside this place has been about control of children and control of the ex-partner rather than about the wellbeing of the child. Certainly a number of emails that I have had have been about control. That is not to dismiss the fact—which I very deeply and freely acknowledge—that most men really want to nurture their children and jointly share responsibility for the children and do not want to control their children.
I am concerned that this legislation codifies control by either parent and is not about children’s rights or putting the children’s interests first. I am deeply concerned that this is about concentrating power and giving power over decisions rather than about what is in the best interest of the child. It also seems to be a one-way street when it comes to the situation where there is a residential parent and a non-residential parent and to what happens to require that non-residential parents make sure that they fulfil their obligations as well. I believe that the concept of joint parental responsibility more clearly and plainly states what society expects from parents, and it does not put the rights of parents first; it puts the rights of children first and the child’s interests first rather than the parents’ interests first. So I join the Democrats in supporting this amendment.
This is an area where sometimes there is a lot to be said about getting the language right. We agree on the issue of renaming ‘equal shared parental responsibility’ to ‘joint shared parental responsibility’ but we do prefer our own amendment on that point. Just so we are in the right area: we are dealing with Democrat amendment (2)—and there is an identical Greens amendment—and there are also Democrat amendments (17), (22) and (23) which deal with all of those matters. Sometimes it helps to outline all of that because they deal with an important area. As I said, I think a lot turns on language, particularly in this area.
We disagree with removing the presumption of shared parental responsibility. We believe that parents should be encouraged to remain actively involved in their children’s lives post separation. Even if they do not live with the child, there are many responsibilities that can be shared jointly. Of course, the shared responsibilities should not apply when family violence is involved in the case. I do not think that anyone would disagree with that. We believe the protections in the bill, with our amendments, would help prevent this from happening. Having said that, we will keep a close eye on the effect of these changes and reconsider our position if evidence emerges that the protections are not sufficient. We will remain open in this area. We are not going to close our view on this.
We also disagree with the amendment to remove the provisions of the bill that would require the court to consider equal or substantial and significant time with each parent. Those provisions require the court to go through a step-by-step, clear and transparent process for determining how time should be spent between the parents. It should make it easier for parents to understand how the court will approach the issue, and this in turn will help to build and maintain confidence in our law and courts. I think it is important to keep coming back to that. In this instance, where we are going to have family relationship centres and there is going to be an expected level of mediation, there will also still be the court process. It is important to ensure that that provision is still there and that people understand that the court is there for those cases that require adjudication. The provisions do not remove the court’s power to determine residency arrangement on the best interests of the child test. That clearly remains the paramount principle, as it should be.
They are the arguments as to why we will not be supporting the Democrat amendments—although I have couched our reasons more in an argument as to why we prefer our amendments. Ultimately, it will not matter, I suspect, as the government does have the numbers. Many hours ago I might have been saying something very similar, unfortunately. They will provide their outcome. What is disappointing in some respects is that the committee report, together with a number of committee reports, dealt with this. This area, as I said earlier, is one where sometimes people come with their own focus. I think it is sometimes helpful to stand back and have a look. You may not be there now but you might get there one day, and it is worth considering how it should, in truth, operate to ensure that there are outcomes that people can live with and outcomes that enable them to get on with their lives.
The government opposes Democrat amendment (2), moved by Senator Stott Despoja, the Greens identical amendment and foreshadowed Democrat amendments (17), (22) and (23), which deal with discrete areas but which are nonetheless related to the question of equal shared parental responsibility. Firstly, on that presumption of equal shared parental responsibility, the government is saying here that the risk with joint parental responsibility is that you could have a situation where there is joint parental responsibility but where the non-resident parent only has a token role and it is viewed as such by the resident parent—that is, the joint parental responsibility does not have the effect of involving the non-resident parent as much as an equal shared parental responsibility might.
In the Democrat amendments (17) and (23), the Democrats are seeking to remove that presumption and, again, the government opposes this. It has taken on board the recommendation of the Every picture tells a story report from the House of Representatives Standing Committee on Family and Community Affairs, which took over 2,000 submissions over a lengthy period of time and heard from hundreds of witnesses. The government is saying that there has been a sound recommendation from that committee in this regard. It is not one which demands equal time, however. I can just clarify that issue. The government does not presume that an equal time arrangement is necessarily in the best interests of the child. Certainly, that is what was considered by the committee at length. In the Every picture tells a story report the committee concluded:
... the goal for the majority of families should be one of equality of care and responsibility along with substantially shared parenting time.
That does not equate to equal time. It can involve substantial periods of shared parenting time but not necessarily in the proportion of fifty-fifty. The government would of course make an exception where there is an example of abuse of children, violence between the parties or a history or violence; that obviously can involve an exception.
We would say that there is or should be a presumption of equal shared parental responsibility, which relates to shared decision making and shared responsibility for the children. The court will only have to consider an equal time arrangement where there is equal shared parental responsibility. I have seen cases of joint custody in the old days where the resident parent saw that as really being total custody and it was just a token effort on the part of the non-resident parent. Every child, subject to the exceptions I have mentioned, does benefit from having as much contact with their mum and dad as they possibly can, and that is what we are talking about.
I will address my comments to the Senate, not just the gallery. The amendments that have been referred to, (17), (22) and (23), are to omit the provisions outlining the operation and effect of the presumption of equal shared parental responsibility. They will also omit the consideration of equal time or substantial and significant time arrangements. On the issue of presumption, the notion of joint parenting is of course preferable where it is in the best interests of the child. I do not presume to say what is in the best interests of the child; I just know that that has to be taken into account. But the presumption detracts from the appropriate, open and individual assessment of what is best for each child’s unique circumstances. The Democrats are supportive of the concept of shared parental responsibility and strongly believe that all parents have a moral and legal responsibility to care for their children to the best of their abilities. However, we do have a number of concerns about the practicalities and possible outcomes of enshrining the presumption in law.
The court needs to be free to decide each case on its merits, and where—for whatever reason—shared parental responsibility is not in children’s best interests the court needs to be able to make this decision. So we consider that the presumption of equal shared parental responsibility as a starting point for determining where a child lives after parents separate generates more of a focus on parents’ rights than on what is in the child’s best interests. I am not going to stand here and say what is in the child’s best interests; I am going to let other people make that determination based on the child’s experiences and their unique circumstances. We consider that the current provisions in the bill objectify the child in the discussion, and the issue becomes one of entitlement. Again, it is a parent-centric notion.
The Democrats disagree with the inclusion of the provisions directing time to be spent with each parent. The focus on time that children should spend with each parent restricts what should be a lateral approach to deciding options for quality parenting after separation. In addition, it places responsibility for the maintenance of the relationship on the children, who will be forced to divide their time between parents. So the effect of the presumption, when coupled with the court’s requirement to consider whether it is equal or substantial and significant time, is arguably to create a de facto presumption and to compound the divergence from consideration of what is best for the children. The Democrats have serious concerns about this, and therefore we oppose the current provisions. As Senator Ludwig was quite right to point out, I should have put that on record earlier, as we are dealing with a range of amendments and proposals to this particular schedule.
The Democrats oppose schedule 1 in the following terms:
(22) Schedule 1, item 31, page 28 (line 1) to page 30 (line 18), section 65DAA, TO BE OPPOSED.
(23) Schedule 1, item 31, page 30 (line 25) to page 31 (line 9), section 65DAC, TO BE OPPOSED.
The only thing I was really going to add, and having listened to Senator Stott Despoja I think it is worth while adding it, is that when you hear the government’s point, that is the problem with it. They need to clarify it again. If it was that obvious, they would not need to get on their feet and clarify it. Mr Ruddock’s original preference was to leave it the way it was. Unfortunately in this instance I think they try to explain it too much. If it is that plain, they could have left it. Notwithstanding that, we have our own amendment on this, as I indicated earlier. We do not need to explain it; I think it is obvious.
by leave—I move:
(2) Schedule 1, item 13, page 19 (line 3), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.
(3) Schedule 1, item 13, page 19 (line 7), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.
(4) Schedule 1, item 13, page 19 (line 27), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.
(5) Schedule 1, item 13, page 19 (lines 29 and 30), omit “equal shared parental responsibility” substitute “joint shared parental responsibilities”
(8) Schedule 1, item 29, page 27 (lines 20 and 21), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.
(9) Schedule 1, item 30, page 27 (lines 24 and 25), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.
(10) Schedule 1, item 31, page 28 (line 6), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.
(11) Schedule 1, item 31, page 28 (line 24), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.
It comes down to the language. This is an area where Mr Ruddock’s preference should have prevailed. I cannot say I have been agreeing with him lately but, in this instance, perhaps the parliamentary counsel got it right originally when trying to work out how this should be expressed in law. This group of amendments will change the use of the words ‘equal shared parental responsibility’ to ‘joint shared parental responsibility’. This is simply a matter of clear and unambiguous drafting. The drafters understood what they had to draft. They had to ensure that the definition relating to parental responsibility was clear but not a quantifiable thing that can be dissected into two equal parts. If that was what they wanted to do they would have used the word ‘equal’. What we mean by shared parental responsibility is that the parents exercise that responsibility together—that is, jointly.
There are many examples in the law where the word ‘joint’ is used to convey that. The parliamentary counsel would have drawn on their experience, as would Mr Ruddock when he agreed to the use of the word ‘joint’ rather than ‘equal’. You do not want the problems that might arise where definitional issues create the argument so that people argue about the words rather than the true outcomes. In the second reading debate, I talked about the importance of creating realistic expectations in this area. The risk of using the word ‘equal’ is that it creates and has the potential to create a false expectation that we are talking about something that is quantifiable: a quantifiable time.
As we know, there is bipartisan agreement against a presumption of equal parenting time. We should not confuse members of the public by using language that sounds like equal time when we mean something completely different. Family law is an area with many self-represented litigants. In fact, at estimates I had the opportunity of talking to the registrar of the Family Court about self-represented litigants and trying to help them work through the issues. It is not always easy for the registrar and the court to deal with this area. We do not want to create even more confusion in this area. I think it is more important to ensure that the wording is clear and that unambiguous language is used. In this case the Attorney-General’s original phrase ‘joint shared parental responsibility’ was the appropriate phrase to use.
The Senate committee also recognised this problem, although it suggested dealing with it by adopting a definition of equal shared parental responsibility. In our view, that becomes a very complex solution when a simple one would do and, as I have suggested, the simple one is to go back to the original wording. The word ‘joint’ is sensible—‘joint shared parental responsibility’ does the trick very well. It is clear and unambiguous language. It should be adopted. The government will go through a complex explanation of why they have shifted from the word ‘joint’ to ‘equal’. They will say it creates greater clarity, I suspect. They will then have to say that it is the problem of joint that needed to be clarified. I am sure they will try that one as well but, in truth, I think the government will struggle to explain why they have shifted.
The Australian Democrats will be supporting the opposition’s amendments for the change in terminology from ‘equal’ to ‘joint’. We support that for much the same reasons as I outlined in my comments on Democrat amendment (2). We do note the difference in the inclusion of the word ‘shared’. The Democrats had omitted this word for reasons of simplification, but we do not particularly object to its inclusion in the ALP amendments, so we will be supporting them.
The exposure draft of the bill did have the terms that Senator Ludwig mentioned, but of course an exposure draft is just that—it is out there for comment—and if we were to treat it as a fait accompli the opposition would be the first to complain. This was a process that was comprehensively consultative across the country, with, as I said, 2,000 submissions to the House of Representatives committee and hundreds of witnesses. The committee suggested the presumption that we now have—equal shared parental responsibility. That was endorsed by the Senate Legal and Constitutional Legislation Committee. We have taken on board their recommendations and we agree with them.
The Greens oppose schedule 1 in the following terms:
We have just been having the debate around the difference between equal shared parental responsibility and joint shared parental responsibility. We have been through those arguments before. As I have articulated before, I believe this puts the rights of the parents before the best interests of the child. I think we have been through these arguments fairly thoroughly. I am not convinced by the government’s position. I still believe that the government amendments put the rights of the parents before the best interests of the children, and I believe we should be going for a joint parental responsibility approach rather than presuming an equal shared parental responsibility.
The Democrats will be supporting amendment (8) from the Greens. The amendment opposes the presumption of equal shared parental responsibility. Democrat amendments (17), (22) and (23), which were not successful, incorporated this amendment but would also have removed the references to equal and substantial and significant time. We will support this amendment, for reasons previously stated.
by leave—I move Democrat amendments (6) to (9), (11), (12), (14), (15), (18) and (19) on sheet 4866 revised:
(6) Schedule 1, item 8, page 6 (lines 9 and 10), omit “ensure that the best interests of the child are met by”.
(7) Schedule 1, item 8, page 6 (line 11), omit paragraph 60B(1)(a), substitute:
(a) except when it would be contrary to the best interests of children, ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives; and
(8) Schedule 1, item 8, page 7 (after line 3), at the end of subsection 60B(2), add:
; (f) children have the right to live free from abuse, neglect or family violence.
(9) Schedule 1, item 9, page 8 (line 5), omit “subsections (2) and (3)”, substitute “subsection (3)”.
(11) Schedule 1, item 9, page 8 (lines 6 to 15), omit subsection 60CC(2) and the heading to subsection 60CC(3).
(12) Schedule 1, item 9, page 8 (line 8), before “the (first occurring)”, insert “subject to paragraph (b),”.
(14) Schedule 1, item 9, page 8 (lines 25 to 27), omit paragraph 60CC(3)(c).
(15) Schedule 1, item 9, page 9 (line 36) to page 10 (line 16) omit subsection 60CC(4).
(18) Schedule 1, item 17, page 21 (after line 36), after subsection 63C(2C), insert:
(2D) The primary focus of a parenting plan must be the best interests of the child. Parenting plans must consider:
(a) A child’s rights to stability, security and adequate and responsible care
(b) A child’s own social networks and their ongoing ability to maintain such networks
(c) A child’s school, sporting and other leisure activities
(d) Any other special needs of the child.
(19) Schedule 1, item 18, page 22 (line 28), at the end of paragraph 63DA(2)(c), add “and of the factors used for determining those best interests”.
These amendments seek to make changes to schedule 1 of the bill. Amendments (6) to (9) make changes to the objects in part VII. The changes are aimed at simplifying the bill and the factors the court must take into account when determining the child’s best interests. The Democrats believe that, with the bill as it currently stands, the construction of proposed section 60B risks misdirecting the court to consider two different sets of considerations as to what is in the child’s best interests. We believe it should be amended to reflect a reference to the best interests of the child. We have attempted to amend the bill accordingly.
We also want make sure the objects of the part are not an additional hierarchy of factors to be considered; we already believe the hierarchy in section 60CC is overcomplicated and problematic for a variety of reasons. We believe that amending the objects, as we are seeking to do, will deprioritise the right to contact focused on by the provision. We have qualified the ‘meaningful relationship’ provision so that it does not always conflict with the need to protect children from harm.
The Democrats also support the retention of the current structure of 68F because we object to the fact that children’s views have been relegated to ‘additional considerations’. Those senators who were involved in the preparation of the report, or indeed the second reading debate on this bill, will have heard senators, including me, outline our concerns that once again children’s best interests are being diminished or relegated in some way. Certainly we believe ‘additional considerations’ is a relegation. The bill of course is supposed to be about what is best for children, so I would have thought that their opinions should not be relegated to the position of an additional consideration.
We object in principle to the inclusion of proposed section 60CC(3)(c), and this group of amendments seeks to remove it. We consider this provision so problematic that we believe it would be best left out of these legislative changes. Proposed section 60CC(4) introduces a requirement for court to consider, when determining the child’s best interests, the extent to which each parent has fulfilled or failed to fulfil their responsibilities as a parent. It is similar, I guess, to the ‘friendly parent’ provision in its emphasis. I know that concerns have been expressed that the provision may encourage parents to focus on earning rights to their children. This is a concern that the Democrats agree with. We consider that the maintenance of stability in a child’s life is undermined by this amendment and it should not be introduced.
Amendment (18) of the Democrats seeks to introduce a provision that is based on a belief that parenting plans should not impinge on a child’s right to stability and security and their ability to maintain their own social networks and school, leisure and sporting activities. Finally, amendment (19) seeks to make the explanation of parenting plans and how they are determined much clearer for parents by including a requirement that advisers are to raise the factors for determining a child’s best interests.
I am not going to talk about every Democrat amendment in this group—(6) to (9), (11), (12), (14), (15), (18) and (19). That is a drafting technique I could have used this morning, quite frankly. In any event, I have learnt. One of the difficulties when you do it this way is that you then end up with me having to say this: we have little problem with many of the amendments in this group, especially those that would remove the hierarchy of considerations in the best interests of the child test—we moved similar amendments in the House through our shadow Attorney-General; however, we do oppose other amendments in this group.
In particular, we strongly oppose the amendment to omit section 60CC(4). We consider that section to be one of the bill’s strong points. Indeed, it comes from an idea proposed by our shadow Attorney-General that the court should be able to consider how parents have lived up to their responsibilities in the past when making orders for the future. It seems a critical point: if you are going to make orders for the future there is a view that you can look at what the conduct of the parties has been in terms of their responsibilities to live up to their previous orders. There might be circumstances that can be taken into account which might explain why they were not lived up to, for argument’s sake, or arguments as to why the orders were followed. In other words, there is enough flexibility in there for people to say there were reasons. They can provide their reasons and ultimately a court will be able to adjudicate on that area. It ensures that those past issues can be taken into account so that people do not use orders for other purposes. If you do you will have to account for that.
Labor’s concern is that without this sort of provision parents could stand on their rights when it suits them and ignore their responsibilities when they choose. Parenting—and I think we have said this a couple of times—is about responsibilities to children. At some point I will have to live up to mine and explain why I am here. At some point I am going to be called to account on that, and rightly so, I suspect. Parenting is about taking the opportunity to be involved in the kids’ lives, to communicate with them, to spend time with them and to ensure they are properly provided for. I am really sorry I have to say all that standing here on a Thursday evening. This section reinforces those responsibilities and Labor strongly supports it.
Labor is not in a position to agree to the Democrat amendments—effectively in group 5 as I indicated earlier—but I did want to go through section 60CC(4) again. It is not only an amendment that has been put in the House by our shadow Attorney-General but also a very sensible one that creates and will allow as much fairness as possible in this area so the parties can live up to their responsibilities. If we are going to use the word ‘responsibility’ then the parties should have something to strive for. In other words, be responsible with these sorts of things.
It seems to me that a lot of the arguments that surround this are about people being irresponsible or having different views and different issues and not looking at what their responsibilities are to their children. It is always cause for reflection when you have to put that into legislation to ensure people will undertake those responsibilities, but if we have to we are not going to resile from it. These are necessary. Ultimately I will come to our amendments, but at this time we are not going to accede to the Democrat amendments.
As senators are probably aware, we have similar amendments that deal with the best interests of the child, and in another amendment we seek to define ‘meaningful relationship’. The Greens are concerned about the two-tiered approach that is being taken in section 60CC, believing that it is a flawed process because there are two primary considerations. In situations where there is family violence we believe the two primary considerations cancel each other out. We do not believe that you can be fostering a meaningful relationship with the parent as well as protecting a child from harm.
We are also deeply concerned that the views of the child have been taken down as a secondary or additional consideration. We believe the process in the existing act is in fact better. As I said, we will be moving an amendment to define what a meaningful relationship is later.
We also believe that there are flawed assumptions underlying this proposal. It assumes that all children see contact with both parents as in their best interests in every case. We are also concerned that there is a presumption that a violent and abusive parent is better than no parent at all. I challenge that assumption. I know that other people do not necessarily believe that, but I am seriously challenging that assumption.
We are disappointed that the wishes of the child are thought to be a secondary consideration. Already access is granted to violent non-custodial parents against the express wishes of the child. There are a number of studies that document that. A study by Michael Flood from the Australia Institute says:
When fathers are subject to allegations of abuse, their chances of being denied contact with children are remote even if these allegations are substantiated, and the numbers of parents falsely accused of child abuse are tiny compared to the numbers of children who are being abused and about whom the Family Court never hears
This paper goes on to describe other circumstances where the child’s wishes have been ignored.
The legislation as it stands effectively puts the parents’ desire for access ahead of the child’s need for safety and protection. We do not believe that is an appropriate approach to be taking in this legislation. We believe that, as has come through in many of our other amendments, the best interests of the child must be put first, and in some instances in areas of domestic violence and abuse the best interest of the child is not necessarily to be with both parents. It is not necessarily in the best interests of a child to be put with an abusive or violent parent. I do not believe that we should be codifying that.
As I said, we have further amendments that deal with meaningful relationship and subsequent amendments that deal with the best interests of the child. We do support the current existing approach in the act. We do not support the two-tiered approach. We believe that the two primary considerations are in conflict where you have situations of family violence and abuse. Therefore, we will be supporting these amendments.
I only want to clarify one matter. I think I talked about 60CC(4) being amended in the House. I always get confused about that. They do not have a process as eloquent as ours, where we actually get to move amendments and argue about them. At least we still have that. I do not yet have any indication from the government that it is going to change. There are three reports that are central to this issue: Every picture tells a story, which was the first report into this area; the exposure draft committee, where our shadow Attorney-General provided a dissenting report and where the idea emanated from and, if they had had a committee such as ours, I am sure she would have brought forward an amendment there; then of course there was the Senate Legal and Constitutional Legislation Committee, which also inquired into the bill, although they confined themselves to certain parts.
This is an opportunity for us to look at all of those amendments and move them. I think I have made the point several times that this is a place where we can try to convince the government to pick up an amendment and where the opposition can support it. However, I am concerned that over the last couple of days it seems that the government has simply been going through the motions. I do not think that is quite good enough. Before 1 July there was a certain sense that committee reports and amendments that come here would focus the government on trying to find an outcome where an outcome may not be on its side. Notwithstanding that, we will press on.
There are a number of issues here. I share the concern expressed by Senator Ludwig in relation to clause 60CC, which is headed ‘How a court determines what is in a child’s best interests’. We believe that is essential and we believe that the Democrats and Greens have really missed the point in their approach to this whole question. Perhaps it is best that I deal with the Democrat amendments in turn.
Firstly, I will deal with Democrats amendments (6) and (7), which purport to remove the link between the objects and substantive provisions in part VII. The government is of the view that it is very important to link the objects of part VII in section 60B to a range of substantive provisions of that part. An example of that is those provisions dealing with the factors to be considered when determining the best interests of the child. You can see in the objects listed that you even have ‘protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence’. These are very important objects—no-one would disagree with that—and we want to maintain the appropriate link between the objects provisions and the substantive provisions, to make it clear that the objects provisions have a direct influence on the more substantive provisions of this part. So I think that the Democrat and Greens amendments serve to de-link that and detract from those very important principles.
The Greens have said that they are worried about violence and are concerned about protection from harm, yet our objects are linked to the substantive part. Section 60CC(2) states, ‘The primary considerations are’—primary, not secondary—‘the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence’. That is very important.
I turn to the other amendments of the Democrats. We are now looking at (11) and (12). Again, they centre on removing this two-tiered approach, which I have just touched on with 60CC. What we have done there is set out, in determining the best interests of the child, those primary considerations that are:
(a) benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) 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 the primary considerations and they give a clear direction to the court. We then go on to deal with additional considerations, and of course they deal with such things as ‘any views expressed by the child’, ‘the nature of the relationship of the child with each of the child’s parents’, ‘the willingness and ability of each of the child’s parents to facilitate a close relationship’ and ‘the likely effect of any changes in the child’s circumstances’. This is quite important, and it goes on; it is quite extensive. The court needs clear direction as to what is a primary consideration and what are additional factors. That is why a two-tiered approach is very important in ascertaining what is best for the child. The destruction of that by the Greens and the Democrats, I think, would certainly not advance the administration of family law in this country.
Moving on to Democrat amendments (14) and (15), the Democrats seek amendment (14) to amend the factors that the court must consider in determining the best interests of the child. The Democrats seek to remove the requirement for the court to consider, when making a determination of what is in the child’s best interests, the willingness and ability of each parent to facilitate and encourage the child’s relationship with the other parent. We think this is a very important factor to take into account. The government considers that a child benefits from both parents being involved in the life of that child, and that is of course subject to the primary need of protecting the child from harm. But to remove that as a consideration would be a retrograde step indeed.
Democrat amendment (15) seeks to remove the requirement that the court consider whether a person has fulfilled or failed to fulfil their parental responsibilities. Whilst the government believe that a child benefits from both parents being involved in its life—and that is important—we do have a provision which allows the court to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil their responsibilities as a parent and their responsibility to facilitate the other parent’s ability to fulfil their responsibilities as a parent. This includes the extent to which each parent has taken or failed to take the opportunity to spend time with the child, communicate with the child and participate in decision making about major, long-term issues in relation to the child. A factor to consider would be if a parent had been overseas for a long period of time and then came back, arrived on the scene and purported to exercise substantial control over the decision making and care giving in relation to the child.
It could also cover a situation where a resident parent has failed to comply with orders about facilitating the other parent spending time with the child—and the court must take that into account when looking at future parenting orders, because you can also have the reverse situation. You may have a non-resident parent disappearing and then coming back on the scene and demanding full time and involvement with the child, or you may have a resident parent denying a non-resident parent the opportunity to become involved with that child’s life and barring them from such access. That has to be taken into account. I had experience of both situations when I practised as a legal practitioner before entering politics. It is a very important factor for the court to take into account. To remove that would be a deleterious move indeed.
We are also looking at Democrat amendments (18) and (19). Democrat amendment (18) seeks to prescribe what parenting plans should entail. The government does not believe that that is necessary. The bill already sets out a wide range of issues that a parenting plan can deal with. Parenting plans have to be flexible—of course, one can only begin to imagine the different family scenarios that we have around Australia—and that is very important. The bill already requires advisers to inform parents that decisions made in developing parenting plans should be made in the best interests of the child.
Finally, as I understand it Democrat amendment (19) would add obligations that advisers should meet. The bill already contains a range of obligations that advisers have to meet in giving advice or assistance to people in relation to parental responsibility for a child and making parenting plans—and I have touched on that. This is intended to assist parents who are working cooperatively to develop safe and practical arrangements for their children after separation. These factors already reflect the primary considerations of the benefit to a child of having a meaningful relationship with both parents and the need to ensure the child’s safety by requiring advisers to inform parents about the child spending either equal time or substantial and significant time with both parents where this is reasonably practicable and in the best interests of the child. I suggest that that makes eminent common sense.
The Democrat amendment does not specify which factors advisers should inform parents about or what constitute the best interests of the child when parents are making a parenting plan. Democrat amendment (19) says:
... at the end of paragraph 63DA(2)(c), add “and of the factors used for determining those best interests”.
That is what I have been referring to—the factors used for determining those best interests. So what exactly does that mean? The bill has already set out what the court must consider in determining arrangements for what is in the child’s best interests when it is making a parenting order. The Democrat amendment imposes these factors upon parents who are working cooperatively to develop a parenting plan. It is inappropriate for advisers to tell parents that they have to consider the same matters that a court considers when that relationship has broken down—and this is the nub of the issue. We have factors for the court to consider once the relationship has broken down. When you have parents working together cooperatively, why add that further obligation on the advisers and the parenting plan? The parents are working well together anyway. They are working together cooperatively. Do not treat that in the same way as you do the situation where a relationship has broken down and the court has to make a decision and look at various criteria.
When parents are working together cooperatively, they are really in the best position to determine what is in the best interests of their children. The government would say, ‘Leave them well alone.’ Where parents are working together cooperatively, albeit that they are separated, that is perhaps the best result, rather than imposing these unwieldy requirements and criteria on them, which you would have in an adversarial situation where the parents are disagreeing with each other. You have a totally different situation. On one hand, the parents are disagreeing with each other and the court has to determine the situation. On the other hand, the parents are working cooperatively together. Do not cast the same criteria for that adversarial situation onto the situation where the parents are working cooperatively. For those reasons, the government opposes this group of amendments proposed by the Democrats.
I would like to ask a question about the primary considerations and seek some guidance about what happens in the situation that I raised before, where primary considerations (a) and (b) are in direct conflict. I put it to you that it would be exceedingly hard to have the benefit of a child having a meaningful relationship with both its parents if you are also trying to protect that child from the physical or psychological harm of being subjected to or exposed to abuse, neglect or family violence. There are situations where those two primary considerations will be in conflict. No matter how much we would like to see the world through rose-tinted glasses, that is what is going to happen. Those two objects are in direct conflict and I would like to know how the government thinks that that should be dealt with.
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.
Can I just clarify: are there circumstances in which the government believes that it would be impossible to meet primary consideration (a) in circumstances where a child has been subject to abuse or violence and it would be impossible to facilitate a meaningful relationship with that parent?
It is a hypothetical question. I think that there are certainly circumstances where, if a child has been abused by a parent, one would not allow that contact to occur. I have seen examples where contact has been allowed to occur under supervised circumstances and I have seen certain other limitations placed on contact where there has been violence involved.
It is an extremely serious situation where a child has been abused or the subject of violence—there is no question of that. But to give you a ruling to say that in any case where there has been violence you should not allow any contact whatsoever is really a question which has to be found in the facts. You and I cannot sit here in this chamber today and say, in an arbitrary fashion, that a relationship between a child and a parent is destroyed forever because there has been an element of violence, unless we know of the particular circumstances which have occurred. And that is all I am saying. To rule a line over human affairs is always very dangerous and that is what I am saying here: these two fundamental or primary considerations give direction to the court as to what it has to consider. I think that, when you look at the additional considerations, you can see that they definitely are secondary to those two primary considerations that I have been speaking of.
Certainly, it is in interests of any child to have a meaningful and loving relationship with a parent. That is a fundamental goal, but the contrast of that—or the opposite to that—is that you should protect a child from abuse and harm. I see no conflict in having those two as primary considerations. They are guiding stars, if you like, to navigate by and, again, it is for the courts to judge. I could well conceive of situations where there was such abuse or violence that you would not allow contact with the parent; I could envisage that. But I think it would be very brave of any one of us to say that because there was an element of violence you would rule out automatically any further contact between a child and a parent—that is all I am saying.
I am not going to debate this, but I do want to put on record through you, Madam Temporary Chair, that I am horrified by a couple of your statements tonight, Minister. I understand the point that you are making about children’s unconditional love but I think that, in doing so, perhaps a lack of understanding of the nature of power and abuse has been displayed this evening. Senator Siewert’s questions go to the heart of some aspects of this debate, but I will proceed with the amendments and ask that Democrats amendments (6) to (9), (11), (12) and (19) be considered together and that amendments (14), (15) and (18) be considered separate from them, if that is agreeable to the government and the opposition. My understanding is that the opposition support Democrats amendments (6) to (9), (11), (12) and (19). I therefore ask that these be considered separate from Democrats amendments (14, (15) and (18).
I move Greens amendment (4) on sheet 4885:
(4) Schedule 1, item 8, page 6 (after line 22), after subsection (1), insert:
(1A) For the purposes of subsection (1), meaningful involvement means a relationship in which the child is not at risk of exposure to family violence, abuse or neglect.
This relates back to the issue that we were talking about earlier where the Greens are seeking to define what a meaningful relationship is—that is, for the purpose of subsection (1), meaningful involvement means a relationship in which the child is not at risk of exposure to family violence, abuse or neglect.
The Democrats will be supporting this amendment to the object section of schedule 1. We regret that safeguards that we have all attempted to include in this bill so far have not been supported in relation to this section. We consider that, by adding the qualifying paragraph (1A) to section 60B(1) of meaningful involvement, this particular amendment constitutes an improvement to the legislation. It will operate to restrict meaningful involvement referred to paragraph (1A) so that it does not include a relationship where the child is at risk of exposure to family violence, abuse or neglect. That amendment should be passed.
I move Democrats amendment R(10) on sheet 4866 revised:
R(10) Schedule 1, item 9, page 8 (after line 14), after subsection 60CC(2), insert:
(2A) For the avoidance of doubt, the reference in paragraph (2)(a) to meaningful relationship means a relationship in which the child has not been and is not at risk of being exposed to abuse, neglect or family violence.
This amendment seeks to ensure that a meaningful relationship is limited so that it is one in which the child has not been and is not at risk of being exposed to abuse, family violence and neglect. The provision is self-explanatory. Its obvious intention is to protect children. We have made it clear that we do not believe that there are appropriate safeguards at present to protect children from harm but, obviously, we have a different definition of meaningful relationship, so I can see where this amendment is going and, with great disappointment, read the numbers.
I am going to give this another go, because I just cannot give up on this one. I think we need to put in a definition of ‘meaningful relationship’, because to expect a child to be able to express a meaningful relationship where that child has been subject to abuse or violence is too much. I think that we need to give some guidance to the court about what this parliament was thinking about when it was thinking about meaningful relationships. As I have already articulated, quite a bit of this bill seems to be focused on the parents’ desires and rights rather than those of the child. Some of the things I have heard tonight, like Senator Stott Despoja’s comments express, deeply concern me because, if you think that a child can form a meaningful relationship with an abusive parent where they have been subject to abuse and family violence, it is a very strange definition of a meaningful relationship and it points out even more clearly to me that we need a definition that goes some way towards defining for the courts what this parliament thought a meaningful relationship means. That is why I am having another go and support the Democrats’ amendment to try to get some meaning around this definition.
The government, as I mentioned earlier, has elevated as an object of part VII, and a primary consideration for the court in determining the best interests of a child, the need to ensure that the child is protected from harm ‘from being subjected to, or exposed to, abuse, neglect or family violence’. I just want to stress, for fear that my position may be misrepresented or misunderstood, that that is a primary consideration and, as such, it influences what is a ‘meaningful relationship’. What the government has done here is that it has considerations of equal weight: the safety of the child is not intended to be subordinate to the meaningful relationship; both factors are important and will be considered in the light of individual cases. To further define ‘meaningful relationship’ I think really does get us into more strife.
I think by having the meaningful relationship in one primary consideration and the protection of the child in the other, you have the two contrasting basic considerations. Rather than tamper with ‘meaningful relationship’, have the protection of the child as the other primary consideration. They can be competing interests; in happier circumstances they are not. But I make it very clear that the government have promoted, as a primary consideration and as an object of part VII, the protection of the child. We do not believe that it is necessary to therefore incorporate it into the definition of ‘meaningful relationship’. We think that would be fraught with even more danger and could then lead us down a very slippery path where all sorts of convoluted interpretations could take place. Rather, have the two basic pillars, as I have mentioned, rest there; and if they are in competition with each other, then it is for the court to determine.
One of the issues here, and a point you just made, is that the situations that we hope do not occur very often, the situations where the circumstances are the most tragic and the most difficult, are the ones that end up in court. It is the hard cases that end up in court. Many of those, though not all of them, involve domestic violence, family violence and abuse. And it is in those circumstances where those two objects, (a) and (b), are going to be in direct conflict. I agree, and I hope, that children should have a meaningful relationship with both parents and not be in need of protection. Of course that is what we all want to see for our children. But there are circumstances where difficult cases end up in court, and it will be in the really hard cases where (a) and (b) will be in conflict. I am deeply concerned about the implications. The chamber has already rejected the amendment proposed by both the Democrats and the Greens to restructure this and get rid of the two-tiered system. But at least we can help to give guidance by defining what we mean by a ‘meaningful relationship’ and specifically ruling out a meaningful relationship being one where the child is subject to violence and abuse by the parent in that relationship.
This is a real line in the sand amendment. It is not one that I believe will get us into ‘strife’ or lead us down a ‘slippery path’. It is one that makes very clear that ‘meaningful relationship’ is restricted and limited to one where a child ‘has not been and is not at risk of being exposed to abuse, neglect or family violence’. That makes it clear that that is a meaningful relationship. I understand the ALP will be supporting this amendment. I indicate to the chamber that I will be seeking to divide on this amendment so that we can record the vote of senators on this absolutely fundamental issue.
That the amendment (Senator Stott Despoja’s) be agreed to.
(13) Schedule 1, item 9, page 8 (lines 25 to 27) omit paragraph 60CC(3)(c), substitute:
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent, except where such a relationship would be otherwise contrary to the best interests of the child;
(ca) paragraph (c) does not apply where the child has been, or is at risk of being, exposed to abuse, neglect or family violence in the relationship with the other parent;
Amendment (13) is an alternative to amendment (14). It proposes an alternative definition to the so-called ‘friendly parent’ provision. The Democrats seek to amend clause 60CC(3)(c) with the aim of ensuring that children are protected from harm—because we have been so successful so far. The Democrats seek to amend the provision to recognise the reluctance to facilitate a close and continuing relationship based on a genuine and well-founded concern about a parent’s capacity to parent or a concern about possible negative impacts on the child as a result of such a relationship. The changes to this provision are intended to take into account the need for parents to make protective decisions about their children. We believe that the provision as it currently stands needs to be redrafted so that what is in fact protective behaviour is not seen as disqualifying the parent who does not comply with the provision.
I suspect I can read the numbers on this one. If I could not succeed in getting an amendment passed that sought to define a meaningful relationship as one that did not have children at risk of abuse, neglect or family violence, I am not sure we will succeed on anything tonight, so I will keep my comments brief.
The government will be opposing this amendment. But it is important to note during this committee stage that the government will expend $397 million on family relationship centres and contact centres, which are aimed at backing up the legislation, which will contain provisions such as the one which the Democrats oppose—that is, the question of parental relationships with children. It is all very well to say that parental responsibilities and the parents’ relationship with the child are factors which should be considered, but you have to back that up. We will do that with contact centres and family relationship centres. In many cases, there are people who, with some guidance and assistance, could well improve their parenting skills and roles, and we could increase the relationship between the parent and child as well as that between the parties themselves. I just put that on the record.
The Australian Greens oppose item 9 of schedule 1 in the following terms:
Other attempts to amend this section of the legislation have failed. If we had been more successful in amending it, I might not have wanted to move this amendment. However, I do not believe that the proposals by the government are in the best interests of children. As I have said before, I believe that the existing provisions within the legislation that are taken to determine the child’s best interests should stand. The Greens do not support the tiered approach outlined by the government and believe that it should be taken out of the legislation.
The Democrats support the intention of the Greens in relation to their opposition to section 60CC. Obviously, we are disappointed that our attempts to move what we believe is an improved version of that section have not been successful. We believe they would have more appropriately determined what was in the interests of children, so we support the Greens in this endeavour. We believe that the current construction of section 60CC will not necessarily provide beneficial outcomes for children, so we do not believe that this section should stand as printed.
by leave—I move Australian Greens amendments (6) and (7) on sheet 4885 together:
(6) Schedule 1, item 11, page 12 (after line 23), after subsection 60I(1), insert:
(1A) Despite references in this Act to genuine efforts to resolve a dispute, a family dispute resolution practitioner is authorised to certify that a dispute is not suitable for dispute resolution and no further action may then be taken in relation to the matter in accordance with this Subdivision.
(7) Schedule 1, item 11, page 14 (after line 26), after subsection 60I(8), add:
(8A) A family dispute resolution practitioner must accept a sworn statement by a parent that violence or abuse has occurred as evidence of that violence or abuse.
As I outlined in my speech in the second reading debate, we have some concerns about the concept of compulsory dispute resolution and some of the requirements in the legislation that go with that. The concern, as I have outlined previously, is that it may create situations in which parents are forced into dispute resolution in inappropriate circumstances. While there are some provisions in the legislation that mean parties can go straight to court, we do not believe that those circumstances are broad enough. This will end up in circumstances in dispute resolution in which people do not feel equal. One of the partners, if they have been subjected to violence or abuse, may feel they are not in equal circumstances in the dispute. If you combine that with the concept of costs for false allegations, which we will get to later on, we believe that we are setting up circumstances in which mediation may not be successful.
That is not to say that we do not support the family relationship centres. We think that concept is a good one. We are concerned that, with the way this legislation has been formulated, most of the effort of those relationship centres will be put towards a system where the relationships have already fallen apart, whereas I understood that the concept of the family relationship centres in the first place was to try to help and foster relationships, not to deal with the end of a relationship. There is a substantial body of evidence that indicates that, unless mediation is handled extremely carefully, one of the partners—and I would hazard a guess that it would particularly be women—can feel that they have been in a situation in which they were not an equal in negotiations and their situations of violence or abuse were not acknowledged. During my speech in the second reading debate I read out quotes from people who had been involved in mediation in which they felt that they had not been able to express their concerns, that their concerns had not been heard and that it would have been better to have had a modified mediation process. Experts on domestic violence suggest that, in those circumstances, it may be better if there is a modified mediation process.
There has also been concern expressed that there will not be available sufficiently experienced counsellors and mediators to mediate in situations where there has been family abuse or domestic violence. Even to recognise it, in many instances, takes specific skills. The concern was expressed in the committee hearing that there are not enough trained, experienced mediators in the current circumstances where people are required to do compulsory mediation to meet the need that is going to be created by compulsory dispute resolution. Amendment (7) adds the words:
A family dispute resolution practitioner must accept a sworn statement by a parent that violence or abuse has occurred as evidence of that violence or abuse.
This is so we get over the concept of people having to prove that they have been subjected to violence or domestic abuse.
What we are concerned about with the combination of the dispute resolution and the false allegations is that women will not come forward with their concerns about domestic violence and abuse. We believe that, if a person provides a sworn statement, that should be evidence enough that violence or abuse has occurred and they should therefore not have to go through compulsory dispute resolution. This expands the process of enabling exemption from compulsory mediation. The other amendment that we are proposing, amendment (6), inserts:
Despite references in this Act to genuine efforts to resolve a dispute, a family dispute resolution practitioner is authorised to certify that a dispute is not suitable for dispute resolution and no further action may then be taken in relation to the matter in accordance with this subdivision.
In other words, a practitioner should be able to say that a case is not suitable for mediation. We believe that that would deal with some of the very deep concerns that we have and that have been expressed about compulsory dispute resolution.
As I said, this is not to say that the Greens do not think mediation is a good thing. We do think mediation is a good thing. We want to see the effort put in up front to deal with these problems through a much more conciliatory approach where resources are put in and people are dealing with trained, accredited mediators. Of course we want that, but we have to acknowledge that there are circumstances where that sort of mediation is not appropriate and will not work. Either partner may feel fear, and those cases are not appropriate for dispute resolution. There needs to be a mechanism—which is not contained in the current legislation—that enables them to not have to go to dispute resolution but to go through another process or to go straight to court.
The Democrats support amendment (6), which deals with authority being given to practitioners, as we do not believe the current exemptions in the bill cover all the circumstances where mediation may not be viable. In relation to amendment (7), I guess it is one mechanism of achieving that end. I accept it is a difficult and quite complex area, and I am not sure exactly what the answer is. Obviously, this is one mechanism, and it is an attempt to balance this and make it a little fairer. On those grounds, we will be supporting the amendments.
I have not been speaking on the Australian Greens amendments—not because I did not like them but because I did not think that I had much to add to the debate. However, on these amendments, what has prompted me is the Democrats’ support. I am curious about the proposed amendments for two reasons. If you look at the idea expressed in amendment (6)—and perhaps the government could reflect upon this as well—it looks like that has been picked up in the bill at page 14. At (aa) it says:
a certificate to the effect that the person did not attend family dispute resolution ...
It seems to pick up the same issue that Senator Siewert and the Australian Greens are trying to encapsulate. It may not do exactly the same thing, but I think the spirit is being caught there and it would certainly meet our concerns. On that basis, we would not support the Greens amendment (6). It seems to have been dealt with sufficiently.
Amendment (7) is a bit more curious to me. It says:
A family dispute resolution practitioner must accept a sworn statement by a parent that violence or abuse has occurred as evidence of that violence or abuse.
There are a couple of wording problems. I assume when we talk about a ‘sworn statement’ it has to be signed and witnessed. This is not the court process we are talking about. You would expect evidence to be given in a court process, where that evidence would be heard viva voce or would be given under oath and then dealt with. In a family dispute resolution, it is more akin to mediation where the parties turn up and provide their statements or evidence.
But the reverse is the thing that really worries. By implication, if a person does not turn up with a sworn statement by a parent that violence or abuse has occurred, is that then not evidence of that violence or abuse? That is what really worries me. Is it the case that it should not be accepted if a person has failed to provide the sworn statement—where one is not really necessary in this environment at this juncture? What would it mean if a person did not come with a sworn statement or they came with a statement but it was not sworn? Does that mean that the matter should not be evidence of that violence or abuse? I think it is narrowly cast in that instance and may lead to an outcome that is not fair to the parties, given that it is supposed to be a quick and reasonably less formal approach to get out of the court system. In this way, you are driving it back into a very court structured process. I will not take up any more time. I would be happy for you to explain it but, for the reasons outlined, we are not prepared to accept amendment (7).
We are trying to find a mechanism whereby people who say they have been subjected to domestic violence or abuse can provide some form of statement that is listed in the legislation, so it can therefore be accepted by the mediation provider. I accept what you are saying about the reverse applying, Senator Ellison, but at the moment we are deeply concerned that people who have been subjected to domestic violence or abuse are going to find mediation very difficult. We believe the legislation at the moment is too narrow for exemptions, and we are attempting to widen the provision for mediation providers to say, ‘This should go straight to court because this person has been subjected to domestic violence or abuse.’
There may be circumstances where a person who has been subjected to domestic violence or abuse will not be prepared to sign a sworn statement because they are in fear; they may not take that action because they are scared. If there are trained mediators and facilitators provided in the family relationship centres then it may be that they pick this up. Then we would expect them to take action to say that the case is not appropriate for mediation. We were not intending that the reverse should apply—that, in circumstances where it is identified that a person might have been subjected to domestic violence or abuse and therefore their case is not appropriate for mediation, that person can then supply a certificate. Let me clarify: we do not want the reverse to apply but we are trying to broaden the provisions that are currently in the bill.
The requirement in the bill that people wishing to apply to court for a parenting order must first attempt dispute resolution was the result of a bipartisan recommendation from Every picture tells a story. That is the background to it. Senator Ludwig has mentioned amendments introduced in the House that talk about the certificate concerned, and we have provided a means by which people can avoid being involved in dispute resolution if violence has occurred. That can be done by way of a certification, by a dispute resolution practitioner or by judicial proceedings where someone takes up the matter in pre-trial proceedings. I think that that is sufficient exception to the requirement for dispute resolution engagement, and I think that Senator Ludwig’s point is a good one—that if you have got a sworn statement then on the face of it you have got to accept that. What we are saying is that you leave it to the dispute resolution practitioner to determine the facts of the case. Again, you really cannot be too prescriptive in human affairs as to what may or may not take place. It is important to give those professional people the ability to assess it, make that determination and provide the certificate. I think that that is the way to go. I think we do provide sufficient exception where there are cases of violence, and we do provide this in a number of ways—not just one. Therefore we oppose the Greens amendments.
I have got concerns if, in a mediated circumstance, we are just leaving it up to the mediator to decide whether a person has been subjected to domestic abuse. I will read from a highly informative article from the Domestic Violence and Incest Resource Centre and Relationships Australia (Victoria). It stresses that in many circumstances people in mediation who have been subjected to domestic violence or abuse feel that they are scared to tell their story when their ex-partner is in the room. They have felt:
...the violence was like a shadow in the room, so I could never talk about my wishes.
The article continues:
Many went ahead with mediation to try and find resolution—
this is referring to women—
with a man of whom they were fearful, rather than out of a desire to mediate for their own outcomes—a case of the best of few options.
I wasn’t emotionally strong enough.
All women found the process of mediation extremely difficult. They felt unprepared for just how hard it was to mediate with their expartners.
Neutrality is like saying your story doesn’t exist.
The point is that in some of these circumstances it is not appropriate that they enter into mediation in the first place and be in a situation where they are in front of the mediator and the mediator is making the decision. That is the point we are trying to make here: people should not have to go into a mediated situation where they are so fearful of their ex-partners that they are not prepared to say anything, where they will just go with the flow and where they feel like their story is not being heard. The issue with mediation is that the mediator is taking a neutral position. That can actually be disempowering for people who have been subjected to domestic violence. The point here is that it is not always appropriate to deal with it that way. That is why we are trying to put this amendment that says that where there is an instance of domestic violence the person should be able to put in a statement that claims that, so they are not put in a situation where they have to be in a room with their ex-partner and the mediator in the first place.
The Democrats oppose item 11 of schedule 1 in the following terms:
This amendment seeks to omit section 60I, which introduces the regime of compulsory dispute resolution to apply prior to parents being able to go to court to seek a parenting order under part VII. Apart from what has been acknowledged and described as a somewhat paternalistic regime, the Democrats feel it is unnecessary to make this regime compulsory. By all means provide services to parents who would like to resolve things prior to events ending up in court, but do not force parents who feel court is an option—and it is the only option, in some cases, particularly in cases of high conflict—to mediate.
The regime, of course, does have some exceptions. I acknowledge that and we welcome them. But there has been no consideration for these exceptions in circumstances where people may be, say, part of a marginalised group in a community or cannot attend or access dispute resolution because of their particular situation or circumstances. We do not believe this regime has taken into account the needs of all families so, on the face of it, we are not impressed by it as it is currently composed. We do not believe that this section, 60I, should stand as printed.
I do not think it will come as any surprise that Labor does not agree with these amendments. Labor opposes this amendment, which removes the provisions of the bill requiring the parties to mediate disputes before applying for parenting orders, with limited exceptions. This is a matter I went through in some detail in my speech in the second reading debate. Labor supports these provisions in cases where separating couples have not been able to reach agreement on their own but are not so entrenched in their attitudes and disagreements as to require final orders from a court.
There is many a time that you can envisage circumstances where the parties may think they are so entrenched that only court will do but, having found themselves in mediation, they resolve the matters in dispute, which provides a better outcome. They then find that court was not the best outcome in truth. Cases involving what could be described as entrenched family conflict, especially cases involving violence, should not be forced into mediation. There is no argument about that. It seems quite clear. All of us agree that a formal, structured court environment is a far better place for those types of cases. Labor believes the critical issue here is in fact how this law is implemented and how it is going to be dealt with. Insofar as that is concerned, the opposition has said this on a number of occasions: we will be watching the government critically to see how they implement these family relationships centres—as well as the parts of this law more generally—to ensure that the outcomes that they promised do materialise.
by leave—I move:
(6) Schedule 1, page 20 (after line 26), after item 16, insert:
16AA At the end of subsection 63C(1)
; and (d) the cooling-off period referred to in subsection (1AA) has expired.
16AB After subsection 63C(1)
(1AA) A cooling-off period is a period of seven days after a parenting plan is made, revoked or varied during which either party may advise in writing that he or she does not wish to make, revoke or vary the parenting plan and accordingly, the parenting plan is not made, revoked or varied, as the case may be.
(7) Schedule 1, page 21 (after line 36), after item 17, insert:
17A Section 63D
Repeal the section, substitute:
63D Parenting plan may be varied or revoked by further written agreement
(1) A parenting plan may be varied or revoked by agreement in writing between the parties to the plan.
(2) Any variation or revocation under subsection (1) takes effect after the cooling-off period has expired.
Labor proposes a cooling-off period of seven days for parenting plans. Parenting plans are simple agreements reached between parents on how they will share parenting responsibilities and parenting time or other issues relating to the care of their children. Under this bill, these plans will have an increased status. They will be able to amend the content of parenting orders, and penalties will flow for breaches of plans. Labor has supported an increased status for parenting plans as part of a package of reforms aimed at encouraging agreements out of court rather than through litigation.
However, if parenting plans are to have a new status, they should also have new safeguards. We need to be certain that parenting plans reflect genuine meetings of mind between parents. We have already persuaded the government to insert a provision that would require parenting plans to be made free from coercion, threat and duress—and I must say that was a welcome position to gain from the government. But it was a bare minimum protection. It was not enough. The government could go further.
We picked up the idea of a cooling-off period from the House of Representatives Standing Committee on Legal and Constitutional Affairs. On many issues, the government has made a big deal of accepting the recommendations of that committee but not this one. I am interested to hear from the minister as to why not this one. In our view, a cooling-off period would be a valuable protection against people being bullied, cajoled or rushed into a parenting plan. I have to say that the concept is not new and has been reflected in other places for other reasons, but it is a sensible way for people to be able to draw breath, especially as in this area there is no requirement to receive legal advice before entering a plan.
Aside from providing this level of protection, a cooling-off period should also contribute to improved compliance with parenting plans. As you can readily grasp, if there were not a cooling-off period and one parent immediately regretted a plan, the chances of noncompliance would have to be higher. It certainly would make sense, with all the expense, stress and frustration that noncompliance generates, to have a cooling-off period. It is also a secondary way of reinforcing the point. If you have allowed the cooling-off period to expire, then, even if you are not completely satisfied with it, you have allowed your options to lapse and are more likely, I think, to then stick with the plan.
It should be kept in mind that this would not in any way weaken parenting plans. It does not affect the plans. It does not allow them to be voided or amended unilaterally on a whim. It simply allows a cooling-off period of seven days. That is a very short time in the context of dealing with the period of the rest of your life in which you are going to share a loving relationship with your child—or at least the period until your responsibilities as a parent change somewhat, and you develop a different kind of relationship with your child.
These are not decisions that should be made lightly. They are serious and they do have profound consequences affecting the most important things in people’s lives—their children. As I have said, this is a straightforward, commonsense amendment that had the support of all the coalition members on the House of Representatives Standing Committee on Legal and Constitutional Affairs. I am surprised, in truth, that the government will not pick this up. This is not even an amendment that detracts from the way they say the bill should operate. It just allows parties to have that short pause as a cooling-off period before the parenting plan commences. I commend the amendment to the chamber.
I will be brief, because my immediate parenting plan is to be home by the time the babysitter runs out at midnight! I want to make very clear the Democrats’ support for this amendment. It is a sensible, logical amendment. It has the support of a number of parties. It has arisen out of committee discussions and indeed recommendations. It is a value-adding amendment—a seven-day cooling-off period for parents entering into a parenting agreement.
We believe it is highly likely that we will find examples of parents being disadvantaged in the negotiating process. Surely the addition of some time to consider the agreement they have made is a beneficial inclusion to this legislation. Protection for parents is important—and I might add that the Democrats’ next amendment on the running sheet is also designed to protect parents when forming agreements outside the courts. The Democrats will be supporting these amendments.
The government considered this carefully. It is true that we have accepted many of the recommendations of the committee, but in this case the government was of a view that the change was unnecessary, given that the agreements concerned are not legally enforceable. The government certainly believes that parents are capable of making their own agreements without regulatory interference, and the bill also provides, as an added safeguard, that parenting plans must be free from threat, duress or coercion.
It should also be noted that, in exceptional circumstances, a court can issue orders that are not subject to alteration by subsequent parenting plans. Exceptional circumstances are stated to include circumstances in which there is substantial evidence that one party is likely to apply duress or coercion against the other parent in seeking to secure a parenting plan. So we cover off on that aspect that was mentioned by Senator Ludwig in relation to bullying or standover tactics. Also, in relation to the fact that these agreements are non-enforceable, I think that we are looking at a situation where really the parents, the parties themselves, are the best people to work out what is best in the circumstances. The government believes that this would just add further regulation, which in the circumstances is not necessary. This does differ from the recommendations made by the parliamentary committee, which in many respects we agreed with—but in this case we did not.
by leave—I move Democrats amendments (20) and (21):
(20) Schedule 1, item 25, page 26 (line 18), at the end of paragraph 64D(1)(b), add “, provided the child’s parents and other persons to whom the parenting order applies can show that they have obtained independent written legal advice prior to signing the parenting plan”.
(21) Schedule 1, item 25, page 26 (line 19), omit “, in exceptional circumstances”.
These amendments operate as checks in the process of developing parenting plans. We are attempting to ensure that these agreements are properly checked. We believe that proposed section 64D will effectively terminate prior parenting orders and we think that the risks posed by this are quite significant. We want to prevent parents from being pressured into an arrangement by another parent, especially in a situation where there is no scrutiny by a court. We believe that it is particularly important that parents are fully informed of their legal rights and of course their liabilities under these orders.
We think these amendments will actually increase protection for parents in negotiations. As I referred to in my earlier remarks, we are keen to ensure that there are protections built in for parents. We are also removing the words ‘in exceptional circumstances’ from proposed section 64D(2), so that a court will have unfettered discretion to ensure that its order cannot be overridden by a subsequent parenting plan. I commend the amendments to the chamber.
The government opposes these two amendments. Just briefly, I will go through the reasons for that. Parenting plans are an important mechanism for parents to come to an agreement on their own, and I have already outlined that. A new provision in the bill inserts a default provision into parenting orders that they will be subject to any subsequent parenting plan. This is to allow a parent to agree to changes in how orders apply to them as the needs of their children change, without having to go back to court. That, we believe, is a very important aspect of this.
The Democrat amendment would defeat the purpose of this provision, which is to give people the opportunity to change their arrangements without having to use the court or the legal system. Parenting plans are voluntary agreements and parents can choose to go back to court if they need to. The other aspect dealt with the removal of the words ‘exceptional circumstance’. The bill inserts a default provision into parenting orders so that they will be subject to any subsequent parenting plan. As I said, this is to allow parents to agree to changes in how orders apply to them as the needs of their children change, without having to go back to court.
The bill includes the discretion for the court not to include the default provision in the parenting order in exceptional circumstances. This implements recommendation 34 of the House of Representatives Legal and Constitutional Affairs Committee report. It ensures that when changes in circumstances lead parents to negotiate an appropriate alteration of arrangements in relation to the child, they are not required to return to court in order to implement that alteration. The court will be able to use this discretion where it has concerns that a later parenting plan would be unlikely to be made in the best interests of the child.
The bill provides that ‘exceptional’ is to include circumstances where the court considers that there is a need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence or there is substantial evidence that one parent is likely to seek to coerce or use duress to gain the agreement of the other parent. This ensures that it is clear that the term ‘exceptional’ covers circumstances where there is a concern about the risks to the child where there is a risk the parent could seek to avoid parenting orders being enforceable by pressuring the other party to agree to a parenting plan. This of course was a concern that was mentioned by Senator Ludwig. We believe that these two amendments are inappropriate and we believe that what is in the bill is sufficient. The parties, the parents themselves, are the best people to come to an agreement as to what is best.
I want to make a point but I will not speak too long on it. I would like to acknowledge not simply the lateness of the hour but also the fact that the Senate this week has sat comparatively late every night. I want to make it clear, once again, that this year has a very small number of Senate sitting weeks for a non-election year. Some of the legislation we have dealt with in relative haste this week and in particular today, such as the telecommunications interceptions law and indeed this legislation—fundamental, significant, quite comprehensive complex law—could have been dealt with in a more timely and considered fashion and at a more reasonable hour of the day.
The Democrats have made it clear that we are more than happy to sit more often as opposed to sitting longer hours and through the night. I am not sure whether this is a deliberate process whereby we operate as a sausage factory and ram the legislation through and feel concerned and constrained when it comes to holding divisions and proper debates. I am not sure whether that is the intention or simply that people, understandably sometimes, want more time in their electorate. At times this is farcical and tonight it is very annoying.
The Democrats oppose schedule 1 in the following terms:
This amendment follows recommendation 7 in the chair’s report of the Senate Legal and Constitutional Legislation Committee inquiry into this bill. This is another important matter. I said earlier that it was pretty much a line in the sand. This is an amendment that a number of us feel very strongly about. This amendment opposes the introduction of section 117AB, the provision allowing for the award of costs where a false allegation or statement in proceedings is proven.
We have said on record previously—in the second reading debate and in the committee stage—and I say it again now: we fear that the effect of this provision would be further promoting the existing problem of underreporting of family violence or criminal assault in the home. It increases the potential for violence and abuse and we are not convinced that there is a valid reason for the inclusion of this in the bill. I am not sure what arguments the government wants to put forward, but I want to again remind the Senate that the chair’s report of the Senate Legal and Constitutional inquiry was signed off by both major parties. This is a recommendation that, as I understand it, has support from government backbenchers and obviously the Australian Labor Party. I note that the opposition’s amendment is identical to the Australian Democrat amendment.
I hope that item 41 will be opposed, that it will not stand as printed. I urge members of the parliament, including those backbenchers who were members of the committee and have, no doubt, felt strongly about this issue and made it clear in the report of the Legal and Constitutional Committee, to consider this position very carefully.
Once again we are back to the core issue in this debate, certainly the core issue for me, which is the issue of violence and abuse. This goes to the very heart of issues such as underreporting and the potential for violence and abuse in the home through this court order for false allegations or the insistence of the award of costs. I urge the Senate to think carefully. I indicate that this will be my only other division—my third division of the day, despite the fact I have put forward a number of amendments on a number of bills this evening and during the day. This is another one on which I ask the Senate to divide if there are other voices.
I do, thank you. The amendment would remove the provisions of the bill that would allow costs to be awarded against people who make false allegations. Labor is sympathetic to those people who are falsely accused of violence or abuse against their ex-partners or their children. It must be truly devastating in the extreme to be accused of such a thing. However, we do need to be careful not to erect disincentives to people reporting family violence. The evidence received by both the House and Senate committees was that underreporting of violence is a much bigger problem in Australia than false allegations. If violence is an issue, it is something the Family Court must know about. It is central to the best interests of the child. What we must avoid, though, is a situation in which people do not raise genuine allegations of violence because they are worried that they will face cost penalties if the court does not believe them. That would be dreadful.
This is clearly a tricky issue. It is difficult to get the right balance between discouraging false allegations and not discouraging genuine allegations. Labor’s view is that the whole issue should be considered after the Australian Institute of Family Studies has completed its study of the interaction of violence and family law. That way, we will be in a position to work from some real data, rather than mere anecdotes and accusations.
The government has previously taken the arrogant attitude that it should make the law first and review it later. It seems to me that that is a theme of this government. However, we are pleased that the government senators on the Senate committee have agreed with our position. Hopefully the government will now see how untenable its position is. Now that Senator Payne and her colleagues have reached the same conclusion as Labor, I look forward to the government’s response. I look forward to the government—for once—moving to agree to a genuine amendment that comes from the crossbenches and Labor.
There are also a couple of areas on which I would like to seek the government’s view. They turn around the role of the mediator in this whole affair. If an allegation of violence is brought to a mediator, how does the mediator deal with it? Does the mediator report it? Does the mediator then have to judge it and provide evidence to the court? If a person turns up for a certificate and says that they have been the victim of violence, does the mediator have to determine whether the allegation has truth in it or is false, and then report it as such? If they put it in their certificate and hand it to the court, what does the court then make of that? Does it say, ‘There has been a certificate from the mediator that says that there has been an unsubstantiated allegation from one of the parties,’ and therefore take it into consideration and penalise the party accordingly? Can you then effectively be penalised for what you have said and done in the mediation?
That is of great concern to Labor because, if it is so, you are not going to get the parties to go to mediation with all the information that they have. They will be guarded because they will be concerned that they will get there, they will say something and it will not be substantiated or the mediator will not think it is substantiated. The mediator might take an opening statement but then report it. The court looks at it, having received it from the mediator, and says: ‘There has been a false allegation made; costs can follow.’ It would be helpful if the government would clarify how the mediator would deal with those sorts of circumstances.
The Greens strongly support this amendment, and I also raised concerns in my speech during the second reading debate. There is no doubt that there has been a concerted campaign aimed at the problem of the concept that there is a huge number of false allegations of abuse and that this is a bigger problem than the unreported and unrecognised abuse. It is acknowledged that there is a huge issue of unreported and unrecognised abuse and that violence orders are being abused as a legal tactic. There is no doubt that there has been a campaign around this.
We are deeply concerned that this clause will discourage people from making allegations of abuse and raising the issues of family violence and abuse. We are deeply concerned that it does not seem like there has been much rebuttal of the argument that there is a huge number of false allegations out there that have been put up to deny fathers. Let us name it: that is what the fathers groups are saying. They say that these false allegations are being raised to deny them access when, in fact, the research does not substantiate this at all. As I said, I have seen very little evidence that people have taken the trouble to put paid to these allegations. The research simply does not support that there is a whole range of false claims out there. I will take you to another study, by Michael Flood of the Australian Research Centre in Sex, Health and Society at La Trobe University. He says:
These examinations find that allegations rarely are made for tactical advantage, false allegations are rare, the child abuse often takes place in families where there is also domestic violence, and such allegations rarely result in the denial of parental contact.
He also goes on to say:
When fathers are subject to allegations of abuse, their chances of being denied contact with children are remote even if these allegations are substantiated, and the numbers of parents falsely accused of child abuse are tiny compared to the numbers of children who are being abused and about whom the Family Court never hears ...
It has been raised that false allegations are being raised to deny fathers contact, when the evidence from the Family Court shows that this is not true. It is not true (a) that false allegations are being made all over the place—the number is in fact tiny—or (b) that false allegations are being made to deny fathers contact. The evidence shows that, even when the allegations are substantiated, fathers are not denied contact.
However, the amendment is going discourage people from making allegations in the first place, so we are going to get even more cases of unreported and unrecognised abuse and family violence. This is of extreme concern for us. It is pandering to the claim of false allegations, which has not been substantiated. Nor, if people do make allegations and they are substantiated, is contact denied. This clause is unnecessary because I do not believe the case for false allegations has been built. The impact it will have is to discourage women from making claims in the first place, which will lead to more unreported and unrecognised abuse and family violence. It is not going to have the impact that the government supposedly requires by supposedly getting rid of this huge number of false allegations, but it will have a deleterious impact on women and children. Combined with some of the other amendments that we have already talked about, this will potentially lead to more children being put in situations where they are exposed to further abuse and family violence.
We do not think this amendment is needed. As I said, we think it will have a deleterious impact. We believe that this issue was discussed quite well in the committee hearing. A recommendation was made by the committee. It was one of the few recommendations that I felt very strongly that the Greens could support, yet the government have ignored it. I strongly ask them to reconsider and to look at the evidence, because the evidence is not there. I put it to you that there is a pandering going on to be seen to be doing something about this when there is no issue in the first place. There is no issue that needs to be dealt with here—none—yet it will have an impact on women and children. It is not in the best interests of children, and I request that the government reconsider this and withdraw this particular amendment to the act.
We are debating Democrat amendment (24) and opposition amendment (12). I think there are some misunderstandings here, and I will correct those. I refer to clause 117AB. It states:
Costs where false allegation or statement made
(1) This section applies if:
(a) proceedings under this Act are brought before a court; and
(b) the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.
(2) The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings.
That is very clear. It is not an allegation which is made anywhere other than in proceedings brought before a court. So we at least have that clarified. It is not a statement made in the street. It is not a passing comment. It is a statement made in proceedings before a court—and that is what makes this all the more serious. If anyone is trying to play down the act of perjury then they should think again. Senator Siewert says, ‘You know, it doesn’t happen that often.’ I can tell you that one act of perjury is one act too many, because justice in this country and in any decent civilised society is based on truthful evidence. There can be no condoning of any false statement made before a court. We are not just talking about allegations of violence, which everyone is so taken with. I agree that that is important, but we are also talking about false statements. It could be a false denial. It could be a false statement about the other party, which is indeed deleterious in the extreme, but it may not relate to violence. I ask those opposite whether they have really thought about this carefully, because we are talking about a knowingly false statement or allegation—and we inserted ‘knowingly’ deliberately, because we were not just talking about something that was in passing, an error or a faulty recollection; we were talking about someone who sets out to make a false statement and does so deliberately in a court of law.
Senator Ludwig asked, ‘How’s this investigated?’ It is in the court. The court is seized of the facts in the hearing before it, and the court deals with it accordingly. There are a number of ways a court could do that. If perjury is made out or the court feels it is made out, it can refer the papers to the police. But courts have been making orders for costs on the basis of proceedings being determined one way or the other for a long time, and in making that determination the courts have relied on the veracity of witnesses. That has been part and parcel of our legal system for a very long time indeed. It is certainly a very important provision.
This is about a false statement which is knowingly made in a court of law. If you do not think that should attract an order for costs then I really despair. Quite frankly, if someone lies in a court proceeding and perjury cannot be made out but the court is satisfied that a knowingly false statement has been made then costs should follow. Let us not get preoccupied with how many false allegations of violence are made. Let us look at the principle that is involved here, and that is that a knowingly false statement has been made in a court of law in this country. That should attract condign punishment if it can be made out in a criminal jurisdiction, but, if it is made out only to the satisfaction of the court, the court should be entitled to take appropriate action—and in this case an order for costs should follow.
I want to make very clear—and I am sure that I speak for others on the crossbench and all in this chamber—when I say that no-one is condoning false allegations. My understanding of the effect of these amendments is that this in no way goes to exempt perjury, let perjurers off the hook or fail in the sense that perjury cannot be established or you cannot have a debate or your day in court in relation to a false allegation. No-one is suggesting that there are not repercussions in that respect and that people do not have the opportunity to challenge in some way or, indeed, deal with through the courts or otherwise the issue of perjury or of false allegation.
There is an aspect to this particular provision in this legislation that we fear has a deterrent effect in relation to the reporting of family violence. Now this is not just some fringe group or non-mainstream perspective; this is something that was backed up by a number of submissions and evidence and, indeed, signed off on in a committee report that had cross-party support. Clearly it set alarm bells ringing for a number of members of this parliament—a number of senators, backbenchers, people from all political parties—as well as some of those representative and key groups who understand and deal with on a day-to-day basis not just some of the court and the legal issues but some of the issues in relation to family violence and family break-ups et cetera.
This is a serious provision, to which Senator Ludwig has offered one solution, which is to go back to the drawing board, wait for the review. At least have some understanding of the impact of this provision before you pursue it in the chamber tonight, before this is rammed through in a way that has little regard for the potential deterrent in terms of reporting violence that so many people are concerned that it may have. One act of violence is one act too many. We have to ensure that the provisions in this legislation are not preventing people from reporting acts of violence. This is one provision that people are broadly worried about—there is wide concern about this particular provision. The Australian Democrat amendment will remove these provisions and in the meantime will enable review, as Senator Ludwig and others have suggested, and it will prevent any deleterious effect that this provision may have.
I would have thought that this would be a sensible solution, at least in the interim, for the government, given that the consequences of this could be so negative. To me it makes sense to wait for the Institute of Family Studies review or to at least investigate this particular clause in some more detail and to listen to the views of the backbenchers—the cross-party backbenchers who, through the Senate Legal and Constitutional Legislation Committee, expressed their concern and came up with the recommendation that this should be removed. Mr Temporary Chairman, I have made clear that this is the second area and the final area I would like to divide on if the voices are there, but I will not comment on this section any further.
I do not want to delay the proceedings too long tonight, but I want to follow up the minister’s answer to my question about mediation and court proceedings. Is the certificate part of the proceedings and, if the certificate were to include grounds that raised the issue of allegations of violence, would that then form part of the proceedings?
The answer is that it is not in the court, as the section says. They are pre-trial proceedings, they are mediation proceedings and they do not form part of the proposed section.
That schedule 1, item 41, stand as printed.
by leave—I move government amendments (1) to (5):
(1) Schedule 1, item 3, page 4 (after line 22), at the end of the definition of family violence, add:
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
(2) Schedule 1, item 43, page 33 (lines 11 to 17), omit subitems (1) and (2), substitute:
(1) Section 60CC of the new Act applies to orders made on or after commencement.
(2) The amendments made by items 13, 29 and 30 of this Schedule apply to parenting orders made on or after commencement.
(3) Schedule 1, item 43, page 33 (lines 26 and 27), omit subitem (6), substitute:
(6) The amendment made by item 22 of this Schedule applies to parenting orders made on or after commencement.
(4) Schedule 1, item 43, page 34 (lines 1 to 3), omit subitem (8), substitute:
(8) Sections 65DAA, 65DAB, 65DAC and 65DAE of the new Act apply to parenting orders made on or after commencement.
(5) Schedule 1, Part 2, page 34 (after line 7), at the end of the Part, add:
44 Grounds for discharging or varying parenting orders
The amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement.
Note: For the need for changed circumstances, see Rice and Asplund (1979) FLC 90-725.
A vote may well want to be taken separately on each of these, I do not know, but I will deal with the government amendments (1) to (5) because they can be dealt with adequately together. Government amendment (1) deals with the definition of family violence. It adds a note to the definition of family violence to clarify that the test to determine reasonableness of a fear or apprehension of violence takes into account the circumstances of the person who is relying on the reasonable fear or apprehension of violence. I canvassed this earlier at some length in general debate on the definition of family violence and I will not go further than that, other than to say that this recommendation implements recommendation 5 of the report of the Senate Legal and Constitutional Legislation Committee.
Government amendments (2) to (4) relate to timing of the bill. These address concerns that the bill would not apply to court applications made prior to the commencement of the bill. Originally we had intended that the bill would only relate to new cases brought after the legislation took effect. This was, of course, an issue because there were people involved in current litigation who said, ‘Why can’t we have the benefit of the new legislation?’ Recommendation 10 of the report of the Senate Legal and Constitutional Legislation Committee recommended that there be an analysis:
... of the cost implications on current litigants, future litigants and the courts on maintaining two regimes for a period of three years for the determination of Part VII applications.
What it was getting at, of course, was that you would have this ongoing effect of the two regimes, if you like.
These government amendments provide that the key provisions in schedule 1, which change the way the courts approached parenting orders, will apply to all parenting orders made on or after commencement regardless of whether the proceedings were initiated before commencement or not. I think these amendments strike the appropriate balance between ensuring uniformity and not unduly disadvantaging existing litigants. The period between passage of the bill and commencement by proclamation will mean that existing litigants will have appropriate notice of the changes to the litigation prior to commencement. I think that is a fairly beneficial amendment to the bill.
Government amendment (5)—and I might stress that the Family Court has asked for this—clarifies the government’s intention that schedule 1 of the bill is not to operate so as to allow previously resolved parenting orders to be reconsidered purely on the basis of changes to the legislation. The case of Rice v Asplund clearly limits the court’s capacity to rehear matters to cases where there is a significant change in the circumstances of the parties or a significant matter that was not previously considered.
Of course, that is reasonable. One would not want to have court orders changed willy-nilly. But what we want to do is put beyond doubt that the changes to the Family Law Act 1975 brought by this bill do not constitute such a significant change in circumstances as would require a rehearing of the matter. I think this is a very important amendment. We do not want hundreds of people applying to change orders just because of the change in legislation. It will mean that the change in legislation will not constitute a significant change. That is something which I believe reflects commonsense.
They are the five amendments that the government seeks to move. They are on three different aspects. Government amendment (1) is on the definition of family violence. Government amendments (2) to (4) are on the timing of the bill. Government amendment (5) is on the fact that this change in legislation will not be a significant change such as to found a basis for applications to vary orders. I commend the amendments.
We support amendments (2) to (4) and amendment (5). I will not go to those in any detail. Amendment (1) tries but in truth fails to implement one of the recommendations of the Senate legislation committee. The amendment tries to address one of the criticisms of an objective test—namely, that it does not allow the court to consider the subjective circumstances of the victim, such as a history of abuse that might make that person more likely to apprehend fear in circumstances in which the reasonable person might not.
Labor is not convinced that this government amendment is a real solution to the problem. Firstly, these interpretive notes are not binding on courts. Secondly, and more importantly, there is ambiguity in what it means to take into account particular circumstances—for example, do those circumstances just involve the history of the particular relationship or is the court allowed to consider a history of abuse at the hands of former partners or other family members? It is not hard to appreciate that a person in the latter category might be more disposed to feel afraid than the reasonable person in a similar particular circumstance.
The problem with an objective test is that it involves judges making decisions about what level of fear is or is not reasonable. Judges must find it impossible to empathise with the particular circumstances of each of the many and varied cases they see. This is why, as we have said, we want the whole issue considered by the AIFS so we can see what recommendations they can make.
In fact, we have been advised that this amendment could even make matters worse, constricting even further the court’s ability to put itself in the shoes of the individual, to use the Senate committee’s phrase. We are advised that the use of the phrase ‘particular circumstances’ could draw the court’s attention to only the circumstances existing at that point in time. We are also advised that the phrase ‘reasonable person’ is even more restrictive than ‘reasonable fear’, which is the terminology of the substantive provision. According to that advice, the former allows less and not more consideration of the experiences and feelings of the individual.
Given these concerns, we will oppose this amendment. We cannot accept the risk that it could reduce the ability of the court to deal with family violence even more than the current bill. As we argued on the proposed substantive provisions and on the Democrat amendment, we believe that it is inappropriate to be making policy on the run on this important definition. It may seem minor and technical, but it is actually a crucial definition for the operation of the family law system, especially the way it responds to the difficult issues of family violence.
The issue is not critical to the reforms we are considering. The government knows and understands that. We say: let us stop tinkering. Let the AIFS study it and let us have a serious look at these recommendations before making any changes to the form of this definition. The government knows that it is tinkering to try to explain its position away. I think it has failed and should just give up.
The Australian Greens share the concerns that Senator Ludwig just expressed, so I am not going to go through them again other than to say that we share those concerns and therefore oppose this amendment. I do seek some clarification, however. I am hoping that the minister can perhaps put it on record—that is what I am looking for. During the committee hearing it was expressed by witnesses that they were concerned that this would place a new, enormous workload on the Family Court because people would seek to bring past cases. It was very clearly stated by the department that in fact it does not apply to past cases. I think it would be a good idea to send a pretty strong message about that because, judging by the number of emails that I have received, I think there are some people out there labouring under the misconception that they will be able to take past cases back to Family Court under this new legislation. I think it would be worth clarifying that point now so that it is on the Hansard.
The Family Court has requested this very amendment—that is, amendment (5)—to address the situation that Senator Siewert has mentioned. As I said, we do not want hundreds of people trying to overturn past cases because of the change in the legislation. This amendment will ensure that does not happen. In view of what Senator Ludwig said, Mr Temporary Chairman, perhaps we can put government amendment (1), then amendments (2) and (4) together, followed by (5), as three separate votes.
Senator Siewert may have some more questions, but I will start with government amendment (5). The Democrats agree with the government’s amendment to alter the application of these amendments in schedule 1. We acknowledge these amendments are an attempt to clarify the bill with the aim of preventing further litigation based on the changes in the bill. We agree with the clarification that the changes in the bill will not constitute changed circumstances that will justify the making of a new order when one is already in place, so we support that.
We will not support government amendment (1). The note that is proposed to be added to the definition of family violence by government amendment (1) will not give effect to the recommendation made in the Senate committee report that the test should be the reasonable person in the shoes of the individual. The reference to the note to being fearful about safety in particular circumstances if a reasonable person in those circumstances would be fearful would tend to draw a court’s attention only to the particular circumstances existing at a point in time. The use of the phrase ‘reasonable person’ is also likely to take attention away from the person’s reasonable fear and lead to the construction of a reasonable person that imports societal misconceptions about family violence. We actually think that the note makes this worse and we believe it would be preferable for the Senate to remove it.
On government amendments (2) through to (5), we understand that the government’s intention is to give people the opportunity to avail themselves of the new laws with great haste. However, consistent with our opposition to the government’s introduction of those provisions, we oppose the application of those provisions to parenting orders that have not yet been made but have been applied for. We will oppose government amendments (2), (3) and (4) and are happy to for you, Mr Temporary Chairman, to proceed as suggested in terms of how you put those amendments to the vote.
(1) Page 3, after line 11, after clause 3, add:
4 Review of operation of Act
(1) Within 2 years of the day on which this Act receives the Royal Assent, the Minister must conduct a review of the operation of the effectiveness and implications of the amendments made by this Act in increasing the propensity of equal parenting.
(2) The review required by subsection (1) is to be completed within 6 months of commencement.
(3) The Minister must cause a copy of the report of the review to be laid before each House of the Parliament within 5 sitting days of that House after the day on which the Minister receives the report.
I also seek leave for a statement from Senator Fielding in relation to this amendment to be incorporated in Hansard.
The incorporated speech read as follows:
This amendment is to ensure there is a review of the operation of the Act, two years after proclamation of these amendments, to establish whether the legislation has been effective.
Many community groups do not think this legislation will be effective and a review would address those concerns.
The origins of this Bill date almost three years, to June 2003, when the Prime Minister announced a parliamentary inquiry into the issue. Many groups and individuals invested great time and expertise into that inquiry, and the subsequent inquiries, to see this Bill debated today. They want equal parenting time as the norm. If the Bill does not work, they want some assurance they will not have to wait many more years until there can be another attempt to fix the problem. A review after two years allows enough time to see how the legislation operates, but not so much that we will be waiting an inordinate amount of time for problems to be addressed.
I ask Senators for their support for the amendment.
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).
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.
This amendment seeks a review of the operation of the legislation. I reiterate my earlier comments and the undertaking given by the Attorney-General that there will be a review of the legislation in three years time. That undertaking was given when the Democrats moved their amendments. I now do so, Senator Boswell having moved Senator Fielding’s amendment for the review.
I seek leave to have Senator Fielding’s voice recorded as supporting the amendment.
by leave—At the request of Senator Fielding, I move Family First amendments (2) to (6) on sheet 4865 together:
(2) Schedule 1, item , page 7 (after line 13), after section 60B, insert:
60BA Public Policy to be considered when applying Part
The Parliament of Australia, in recognising the fundamental need of every child to experience the love, guidance and companionship of both parents in an every day setting after their separation or divorce, declares that it is the public policy of the Commonwealth to maximise the time and involvement each parent is willing and able to contribute in raising their child or children after the parents have separated or dissolved their marriage and to encourage parents to share the duties and responsibilities of child-rearing to affect this policy.
(3) Schedule 1, item 13, page 19 (after line 34), after section 61DB, insert:
61DC Orders made in disputes over where child lives
(1) In disputes involving where a child is to live, the court shall make a parenting order according to the best interests of the child in the following order of preference:
(a) the child to live with both parents jointly; or
(b) the child to live with either parent; or
(c) the child to live with any other person determined by the court to be suitable and able to provide an adequate and stable environment suitable for raising the child.
(2) In making a parenting order in favour of one parent, the court must consider among any other factors:
(a) whether one parent is more likely than the other parent to facilitate and encourage the most parenting time and involvement of the other parent; and
(b) whether or not each parent is able to provide the parenting time they request.
(3) A parenting order may not be made on the basis of a parent’s gender or race.
(4) Schedule 1, item 13, page 19 (after line 34), after section 61DB, insert:
61DD Statement of reasons for parenting orders
(1) If a court does not order that the child is to live with both parents jointly, the court shall state in its decision the specific findings of fact upon which the order that the child not live with both parents jointly is based.
(2) An objection by a parent to an order that the child live with both parents jointly or conflict between the parents is not a sufficient basis for a finding that the order is not in the best interests of the child.
(5) Schedule 1, item 13, page 19 (after line 34), after section 61DB, insert:
61DE Modification of parenting order
(1) In considering an application for the modification or termination of a parenting order the court shall recognise evidence of substantial or repeated failure of a parent to adhere to the parenting order.
(2) The court shall include in its decision on an application made in accordance with subsection (1) the reason for modifying or terminating the parenting order if either parent opposes the modification or termination order.
(6) Schedule 1, item 13, page 19 (after line 34), after section 61DB, insert:
61DF Presumption of parenting time
(1) In an application for a parenting order in accordance with this Part, there is a rebuttable presumption that maximising the parenting time and the involvement which each parent is willing and able to contribute in raising their child is in the child’s best interests.
(2) Maximising parenting time is achieved by ensuring that:
(a) the parent is not denied the ability to spend as much parenting time as that parent is willing and able to contribute; and
(b) the parent does not have his or her requested time reduced when to do so would result in increasing the amount of parenting time the other parent contributes to exceed 50%.
(3) The presumption in subsection (1) may be rebutted by demonstrating with specific reasons that it is not in the best interests of the child after consideration of clear and convincing evidence with respect to any or all relevant factors set out in subsection 68F(2).
(4) The burden of proof for rebutting the presumption of parenting time is on the objecting parent or party.
I also seek leave to have Senator Fielding’s statement relating to these amendments incorporated in Hansard.
The incorporated speech read as follows:
Family First’s top priority is the welfare of children. The first question we must ask is: what is in the best interests of children? It is a sad and unfortunate fact of life that many relationships end. It is crucial that we find the best way of dealing with these situations to minimise the damage, particularly to children, but also to parents.
These amendments are about the Senate recognising that the best place for children, even after a relationship breakdown, is with their mum and dad. When a relationship ends, the way to maintain equal access for children is shared parenting.
If a parent has not done anything wrong, why should the child be penalised by effectively losing one of their parents?
For this to work, both parents have to want to exercise their responsibility and be with their child. It is not our purpose to force parents to exercise shared parenting. But Family First would hope that all parents would want to. Just because a relationship ends, does not mean the job of being a parent ends.
Family First’s principle amendment in this group is amendment 6, which is a rebuttable presumption that maximising the parenting time and involvement of each parent is in the child’s best interests.
Equal parenting time must be the starting point when considering arrangements after parents have separated. But this can be rebutted by demonstrating that equal time is not in the best interests of the child. For example, due to a parent’s work or travel commitments or because one parent could pose a threat to the physical, psychological or emotional wellbeing of the child, that presumption could be overturned.
These amendments are fair and reasonable. I ask Senators for their support for these amendments.
I am in the chamber and so, unfortunately, I cannot seek to incorporate my speech. It is a wonder Senator Joyce did not seek to incorporate from Antarctica and achieve his favourite pastime of being able to vote from afar.
The main aim of these amendments is to create a presumption of equal parenting time. This goes back to the very beginning of this debate several years ago. People listening to the debate tonight would be familiar with this issue, which we started off with a lot earlier this evening. Every detailed analysis of this proposal ends up with it being rejected. The original Every picture tells a story committee rejected this unanimously across all parties. All up, this issue has been considered by three parliamentary committees, none supporting an equal time rule.
Labor believes that the court has to consider the best interests of the child first, not the rights of parents. The best interest of the children cannot be determined by first reaching for the calculator. Children cannot and should not be treated as if they can be cut down the middle. Labor does support the increasing number of separated couples who are choosing equal time arrangements. We hope that the changes encouraging family dispute resolution and parenting plans will give them the flexibility they need to make those arrangements work. We also support the changes requiring the court to give consideration to equal time or substantial and significant time. This will encourage parties in the courts to consider the issue but not impose it when inappropriate.
It is the case, and it is very welcomed, that many of the old gender roles are breaking down. We no longer see family relationships in the simple terms of mother as carer and father as breadwinner. Our law does need to change to keep up to date with these changes. We believe consideration of equal time is the right step to take, but we oppose a presumption of equal time, because one size does not fit all. We believe in the paramountcy of the best interests of the child test, not parents fighting over children as the spoils of a marriage break-up.
The government opposes these amendments. Whilst the government appreciates the concerns of those supporting these amendments and we strongly believe in both parents having a meaningful involvement in their children’s lives, the government acknowledges that an equal time arrangement may not be appropriate in all circumstances. Accordingly, the government has required that a court consider in cases where the presumption of shared parental responsibility is made out whether an equal time arrangement is in the interests of the child and is reasonably practicable. If equal time is not awarded on this basis, a court must consider substantial time enabling the non-resident parent to be involved in the child’s day-to-day routine.
I would stress again, and it should be noted by the Senate, that the effect of the new provisions will be monitored on an ongoing basis. I think that people should be conscious of that. The government cannot support these amendments for these reasons and others that I outlined earlier in relation to similar arguments.
I seek leave to have Senator Fielding’s vote recorded as supporting the amendments.
by leave—At the request of Senator Fielding, I move Family First amendments (7) and (8) together:
(7) Schedule 1, item 13, page 19 (after line 34), after section 61DB, insert:
61DG Domicile of child pending making of an interim parenting order
Unless it is shown on written application by either parent to the Registrar to be detrimental to the best interests of the child, the child as far as practical shall spend time with both parents equally during the time that the court considers an application on where the child shall live.
(8) Schedule 1, page 32 (after line 4), after item 36, insert:
36A After section 67M
67MA Change of domicile of a child
(1) In the absence of an order to the contrary, a parent that has a child living with him or her as a result of a parenting order shall notify the other parent if he or she plans to change the location of the child for more than thirty days together with the reason for the change of location, unless there is written consent by the other parent to the change.
(2) To the extent possible, notice must be served personally or given by certified mail, not less than forty-five days before the proposed change in location and proof of service of the notice required by this section must be filed with the court that issued the parenting order.
(3) A parent who is notified of a change of location of a child may apply to the court to seek modification of the parenting order.
(4) Failure to give notice of a change of location of a child or failure to show good cause for the change of location of a child may be factors to be considered in determining whether the change of location was changed in good faith.
I seek leave to have Senator Fielding’s statement relating to these amendments incorporated in Hansard.
The incorporated speech read as follows—
Amendment 7/8 —grouped together
Domicile of child
Unless it is shown to be detrimental to the best interests of the child, Family First believes the child should live with both parents equally during the time the court considers an application about where the child lives.
The financial implications to either parent of joint residency is not sufficient reason for denying a child’s right of residency with each parent and should not be taken into account by the court.
Family First believes the court should not recognise interim orders that establish the ‘status quo’ and deny a child’s right to equal parenting time.
There is also a very reasonable requirement that parents give each other notice of a parent’s plan to move a child to a new location for more than 30 days. In other words, parents have to keep each other informed.
In the absence of an order to the contrary, a parent who has the child living with him or her shall notify the other parent if he or she plans to change the location of the child for more than 30 days, unless there is written consent to the change.
I ask Senators for their support for these amendments.
The government does not support these two amendments. I think we have covered the arguments extensively previously. I will not go over those again but I would point out that the Family Law Council has recently released a discussion paper on relocation decisions. Submissions are due in mid-April and the council will provide advice to the Attorney-General by early May this year. The government will consider whether changes to legislation are required in light of the council’s advice. In the circumstances, it would not be appropriate to pre-empt that advice. Having regard to the amendment put by the Family First Party, the government would invite the Family First Party and indeed all interested stakeholders to contribute to the Family Law Council’s review of this difficult issue.
I seek leave to have Senator Fielding’s vote recorded as supporting the amendments.
At the request of Senator Fielding, I move Family First amendment (9):
(9) Schedule 1, page 32 (after line 6), after item 37, insert:
37A After section 67Y
67YA Parent’s right of access to records of child
Notwithstanding any other provision of this Act, unless the court orders otherwise, access to records and information relating to a minor child, including but not limited to medical, dental, law enforcement and school records, shall not be denied to a parent that does not have the child living with him or her.
I seek leave for a statement from Senator Fielding in relation to this amendment to be incorporated in Hansard.
The incorporated speech read as follows—
Access to records of a child
This is a simple and commonsense amendment. Family First believes it essential that bath parents have access to records and information about their child, including information about their child’s medical, dental, law enforcement and school records. If we want to ensure shared parenting, we have to be able to share information about a child. There is the opportunity for the court to decide in special cases if providing that information is inappropriate.
I would appreciate senators’ support for this amendment.
The government will oppose this amendment. It would not be appropriate, in the government’s view, for the Family Law Act to interfere with legislation dealing with access to medical records which are governed by Commonwealth, state and territory laws. Given that this provision has not been the subject of consultation with the wider community, the government will not be supporting this amendment at this time. I bring to the attention of the Senate and Senator Fielding that the government will consider further whether this issue requires legislative attention.
I seek leave to have Senator Fielding’s vote recorded as supporting the amendments.
At the request of Senator Fielding, I move Family First amendment (10):
(10) Schedule 1, page 32 (after line 6), after item 37, insert:
37B After section 67Z
67ZA Malicious false accusations
(1) Evidence of a malicious false report of child abuse or family violence is admissible in proceedings between parties relating to where the child lives or relating to parenting time and the court shall make a finding on the matter of a malicious false report.
(2) If a court makes a finding of a malicious false report of child abuse or family violence made before or during a proceeding in accordance with this Part, the finding shall be grounds for the court to restrict the parent-child relationship between the child and the person found by the court to have made the malicious false report.
(3) If a court determines, based on the evidence presented to it, that an accusation of child abuse or family violence made during a proceeding is malicious and false and the person making the accusation knew it to be malicious and false at the time the accusation was made, the court may award reasonable costs, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, against the person determined by the court to have made the malicious and false report. For the purposes of this Part, person includes a witness, a party, or a party’s legal representative.
(4) On application by any person requesting the ordering of costs against another party under this Part, the court shall issue a direction for the other party to show cause why the requested costs should not be imposed and shall schedule a hearing on the matter not later than 15 days after a direction is given in accordance with this subsection.
(5) For the avoidance of doubt the remedy provided by this section is in addition to any other remedy provided by law.
I seek leave for a statement from Senator Fielding in relation to this amendment to be incorporated in Hansard.
The incorporated speech read as follows—
Malicious false allegations
Family First believes it is important to discourage false reports of child abuse or family violence.
If a court determines, based on evidence presented to it, that an accusation of child abuse or family violence is false and the person making the accusation knew it to be false at the time it was made, the court may impose a reasonable financial penalty. That penalty should not exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable lawyers’ fees incurred in recovering the sanctions, against the person making the accusation.
No one is at risk if their allegations are true or if they believed them to be true.
A malicious false report of child abuse or family violence would be grounds for a court to consider restricting the parent/child relationship between the child and false accuser.
Family First understands the Australian Institute of Family Studies is undertaking research into violence and family law and some people have argued this issue should not be addressed until that research is published. I do not want to discount the importance of that research, but there will always be research underway and there will always be an excuse not to act. The research can be taken into account in future amendments.
I ask Senators for their support for the amendment.
The government opposes this amendment. It would be inappropriate to implement further specific measures at this time in relation to this amendment which deals with malicious and false allegations. We have had extensive debate about this matter. The Australian Institute of Family Studies has been tasked to consider means to improve court processes where allegations are raised. These issues can be further considered in light of that research. I would suggest that Senator Fielding and Family First and others who have been involved in this debate might feel that they have something to contribute.
The Greens oppose schedule 1 in the following terms:
As has been articulated in this discussion and our comments during the second reading debate, the Greens have very strong concerns about this bill. We tried to make amendments and suggestions to make it better. We do not believe that this bill, even with the government amendments, deals with our issues of concern. We are deeply concerned about the impacts that these amendments are going to have, particularly on children and women who are exposed to family violence and domestic violence. Those are our particular strong concerns. We therefore feel that we have to oppose schedule 1, given that the amendments to substantially improve it were not accepted.
by leave—I move Democrat amendments (25) and (29) to (37) on sheet 4866.
(25) Schedule 5, item 5, page 133 (lines 3 to 9), omit paragraphs 68M(2)(b) to (e), substitute:
(b) a person with whom the child is to live under a parenting order; or
(c) a person who is to spend time with the child under a parenting order; or
(d) a person who is to communicate with the child under a parenting order; or
(e) a person who has parental responsibility, or a component of parental responsibility, for the child.
(29) Schedule 8, item 48, page 153 (lines 3 to 5), omit subparagraphs 26B(1A)(a)(ii) to (iv), substitute:
(ii) a person is to spend time with a child; or
(iii) a person is to communicate with a child; or
(iv) a person is to have parental responsibility, or a component of parental responsibility, for a child; or
(30) Schedule 8, item 49, page 153 (lines 20 to 22), omit subparagraphs 37A(2A)(a)(ii) to (iv), substitute:
(ii) a person is to spend time with a child; or
(iii) a person is to communicate with a child; or
(iv) a person is to have parental responsibility, or a component of parental responsibility, for a child; or
(31) Schedule 8, item 64, page 157 (lines 14 and 15), omit subparagraphs 65Q(1)(a)(ii) and (iii), substitute:
(ii) a person is to spend time with a child; or
(iii) a person is to communicate with a child; and
(32) Schedule 8, item 74, page 159 (lines 1 to 8), omit paragraphs 67K(1)(a) to (caa), substitute:
(a) a person with whom the child is living under a parenting order; or
(b) a person who is to spend time with the child under a parenting order; or
(c) a person who is to communicate with a child under a parenting order; or
(caa) a person who has parental responsibility, or a component of parental responsibility, for the child under a parenting order; or
(33) Schedule 8, item 75, page 159 (lines 11 to 17), omit subparagraphs 67Q(a)(ii) to (v), substitute:
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person who is to spend time with the child under a parenting order; or
(iv) a person who is to communicate with the child under a parenting order; or
(v) a person who has parental responsibility, or a component of responsibility, for the child;
(34) Schedule 8, item 77, page 159 (line 26 to 33), omit paragraphs 67T(a) to (caa), substitute:
(a) a person with whom the child is to live under a parenting order; or
(b) a person who is to spend time with the child under a parenting order; or
(c) a person who is to communicate with the child under a parenting order; or
(caa) a person who has parental responsibility, or a component of parental responsibility, for the child under a parenting order; or
(35) Schedule, item 78, page 160 (lines 1 to 7), omit subparagraphs 68B(1)(b)(ii) to (v), substitute:
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person who is to spend time with the child under a parenting order; or
(iv) a person who is to communicate with the child under a parenting order; or
(v) a person who has parental responsibility, or a component of parental responsibility, for the child;
(36) Schedule 8, item 88, page 161 (lines 21 to 25), omit paragraphs (a) to (ab) of the definition of responsible person, substitute:
(a) with whom the child is supposed to live under the order; or
(aa) who is supposed to spend time with the child under the order; or
(ab) who is supposed to communicate with the child under the order; or
(37) Schedule 8, item 90, page 162 (lines 3 to 8), omit paragraphs 70M(3)(a) to (ab), substitute:
(a) a person with whom the child is supposed to live under the order; or
(aa) a person who is supposed to spend time with the child under the order; or
(ab) a person who is supposed to communicate with the child under the order; or
This group of amendments makes minor but, we think, important changes to the language of the bill. We believe that these are important amendments because they bring the focus back to where it should be: children. They are designed to reinforce parental responsibilities towards children rather than parents’ rights over children. So I commend the amendments to the chamber and once again record my dismay at the policy and the process with which we have dealt tonight. I think this is a sad day in many respects. We know laws change lives, and I suspect this legislation will change some lives for the worse. That makes me deeply upset, but given that my babysitter has only 10 minutes to go I cannot elaborate on those views in a third reading address. I commend my amendments to the chamber.
Bill, as amended, agreed to.
Bill reported with amendment; report adopted.