Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Hansard source

I would like to comment briefly on the Attorney’s indication that the substance of these provisions in the amendments proposed by the opposition will be agreed to. I understand his comments that they will be moved as part of the government amendments. At least one person whom I heard in the House rather cheekily said he thought the Attorney and I were behaving like a divorcing couple over some of these amendments. The Attorney’s determination not to accept our amendments but to have his indicates that it has become a little petty. I am quite prepared in the spirit of mediation to accept that the government will move the amendments in the terms that they see fit on these three items.

Question negatived.

by leave—I move opposition amendments (3) to (26) together:

(3)    Schedule 1, item 9, page 8 (line 6)

        omit ‘Primary considerations

(4)    Schedule 1, item 9, page 8 (line 7),

        omit ‘primary’.

(5)    Schedule 1, item 9, page 8 (lines 13-14),

        omit the note.

(6)    Schedule 1, item 9, page 8 (line 15)

        omit ‘Additional considerations’.

(7)    Schedule 1, item 9, page 8 (line 16)

        omit ‘(3) Additional considerations are:’.

(8)    Schedule 1, item 9, page 8 (line 17)

        omit ‘(a)’, substitute ‘(c)’

(9)    Schedule 1, item 9, page 8 (line 22)

        omit ‘(b)’, substitute ‘(d)’

(10)  Schedule 1, item 9, page 8 (line 25)

        omit ‘(c)’, substitute ‘(e)’

(11)  Schedule 1, item 9, page 8 (line 28)

        omit ‘(d)’, substitute ‘(f)’

(12)  Schedule 1, item 9, page 9 (line 1)

        omit ‘(e)’, substitute ‘(g)’

(13)  Schedule 1, item 9, page 9 (line 6)

        omit ‘(f)’, substitute ‘(h)’

(14)  Schedule 1, item 9, page 9 (line 12)

        omit ‘(g)’, substitute ‘(i)’

(15)  Schedule 1, item 9, page 9 (line 16)

        omit ‘(h)’, substitute ‘(j)’

(16)  Schedule 1, item 9, page 9 (line 23)

        omit ‘(i)’, substitute ‘(k)’

(17)  Schedule 1, item 9, page 9 (line 25)

        omit ‘(j)’, substitute ‘(l)’

(18)  Schedule 1, item 9, page 9 (line 27)

        omit ‘(k)’, substitute ‘(m)’

(19)  Schedule 1, item 9, page 9 (line 31)

        omit ‘(l)’, substitute ‘(n)’

(20)  Schedule 1, item 9, page 9 (line 34)

        omit ‘(m)’, substitute ‘(o)’

(21)  Schedule 1, item 9, page 9 (line 36)

        omit ‘(4)’, substitute ‘(3)’

(22)  Schedule 1, item 9, page 9 (line 36)

        omit ‘(3)(c) and (i)’, substitute ‘(2)(e) and (k)’

(23)  Schedule 1, item 9, page 10 (line 14)

        omit ‘(5)’, substitute ‘(4)’

(24)  Schedule 1, item 9, page 10 (line 17)

        omit ‘or (3)’

(25)  Schedule 1, item 9, page 10 (line 19)

        omit ‘(6)’, substitute ‘(5)’

(26)  Schedule 1, item 9, page 10 (line 19)

        omit ‘(3)(h)’, substitute ‘(2)(h)’

This large number of amendments effects just one change, which is the removal of the hierarchy which has been introduced in dealing with the best interests of the child test. It was strongly argued for by the court—which, after all, has to apply this test—not to remove any of the items that are in it, but to ensure that all items can be treated and considered by the court as factors of importance. The opposition do agree—and it is important to have this on the record—that a meaningful relationship with each parent and the safety of the children are absolutely vital matters in determining what is in the best interests of the child.

We are simply concerned that we are making the test very difficult for the court to apply. No doubt they will be able to live with it if the government insists on keeping it the way it is. But we do think that matters such as the views of the child, for example, should be able to be taken account of. Depending on the age of the child, it is probably arguable that their views should sometimes be given much more weight than other things. This hierarchy does lead people, and potentially lawyers, down the track of arguing which particular item should be given how much weight. I am not sure that is a constructive way when the bill otherwise encourages people to rely less on litigation. It seems we might be creating a new area of litigation.

I also need to know, because I think there are some legitimate concerns, what the court will be asked to do if the two primary considerations conflict with each other. Obviously, one of the primary considerations is to protect children in particular from violence. If there is violence in a family and a meaningful relationship with both parents is also to be a primary consideration, I do not envy the judges their job of trying to apply the new law in the way that the government proposes. As I say, I have great confidence that the courts will be able to deal with that, and I can see the argument—though I am not sure if it is one that the Attorney puts—that it is useful to highlight these two issues for those many self-represented litigants in the area.

It is important to make sure that both of these factors are at the front of people’s minds when they might be negotiating parenting plans outside the court setting, but we believe that it would be preferable to have all of the items listed. Our proposal still keeps the two primary considerations that the government has identified in their original order, so they would still be the first two matters that people would read when examining the list of what is in the best interests of the child, but we believe it would be preferable not to have that hierarchy inserted into the act.

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