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

by leave—I move amendments (36), (41), (46), (47), (48), (49), (50), (51) and (53) together:

(36)  Schedule 1, item 13, page 19 (line 6) add:

       ‘(5)    When considering the best interests of the child under subsection (4), the court must consider the extent to which each parent:

             (a)    has taken, or failed to take, the opportunity:

                   (i)    to participate in making decisions about major long-term issues in relation to the child; and

                  (ii)    to spend time with the child; and

                 (iii)    to communicate with the child; and

             (b)    has facilitated, or failed to facilitate, the other parent:

                   (i)    participating in making decisions about major long-term issues in relation to the child; and

                  (ii)    spending time with the child; and

                 (iii)    communicating with the child; and

             (c)    has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.’

(41)  Schedule 1, item 25, page 25 (line 23), after ‘order’ insert

                 ‘made after the commencement of this section’

(46)  Schedule 1, item 41, page 31 (lines 13-22), omit the item.

(47)  Schedule 2, item 6, page 39 (line 32), omit:

                 ‘(whether before or after the commencement of this section)’ substitute ‘made after the commencement of this section..’

(48)  Schedule 2, item 6, page 44 (line 21) before ‘order’ insert:

                 ‘if the current contravention is not of a minor or technical nature’.

(49)  Schedule 2, item 6, page 44 (line 36) before ‘order’ insert:

                 ‘if the current contravention is not of a minor or technical nature’.

(50)  Schedule 2, item 6, page 46 (after line 7), insert:

    ‘(6A)    The court must not make an order under paragraph (1)(d) or (f) if the person who committed the current contravention did so because of a genuine belief that the contravention was necessary to protect the health or safety of a person (including the respondent or the child)’.

(51)  Schedule 3, item 4, page 60 (line 6) after:

                 ‘Part’ add:

                 ‘except those that are under Division 13A’.

(53)  Schedule 4, item 36 page 90 (after line 12) insert:

                (aa)    their right to have the dispute resolved by a court; and

                (ab)    the advantages of court proceedings in cases involving family violence, abuse or entrenched conflict; and

                (ac)    the contact details of a relevant legal aid commission or community legal service; and’.

These are the remainder of the opposition’s amendments, which cover a range of different matters. Given that the government has had these amendments for some time, I am not going to talk to them in great detail other than to make sure for the record that the number of issues that has been put forward does stand as part of the debate. The first provision looks at including the actual responsibility that a parent has exercised in relation to a child when considering the rebuttal of shared parenting responsibility. This amendment is made out of an abundance of caution. The proposals from Labor have already been accepted and included in the ‘best interests of the child’ test. This is just to make sure that it would be considered also as part of the shared parental responsibility provisions. We have proposed some transitional provisions relating to parenting plans to make sure that, where the court might specifically have wished that orders made by it should not be able to be varied by individual parents, the new parenting plan regime should not be able to surpass those court orders. Obviously, it is hard to know which cases those are because the court will not have turned its mind to the fact that a parenting plan might later be able to be made because this sort of regime was not in place. So that is a proposal to deal with transitional provisions.

We have an amendment which deals with the costs that can be awarded if false allegations of violence are made. It is very interesting that the Attorney-General said in his summing up on this bill that he simply wanted to give the court the discretion to be able to make these orders, not that it be required to do so. The comments he has made to date on this do not make that clear, so it was interesting to hear that. We think this is a really difficult issue. There is absolutely no doubt that nothing should be done to support people who use the court system to knowingly abuse the process. We agree that that is a problem, but we do not think this is the right solution. We are concerned that there is far more evidence of people not reporting violence when they should have done so. This may leave them and their children exposed to violence. To weight the disincentives so that a person not only fears that they may not be able to prove that they fear a situation of violence but also may have a significant costs order put on them is, we think, a very unnecessary burden. It sends the wrong message. We are keen to have people disclose violence if they have been involved in violence or are concerned about risks to their children.

We have amendments that deal with minor and technical contraventions. The original proposals in the bill were that the new harsher remedies that the court is able to order when there have been breaches of parenting plans or court orders should not apply to minor and technical contraventions. The government initially took this approach but has moved away from it following a recommendation from the LACA committee. It seems to us that there is no reason to allow the courts to use these much heavier penalties for minor matters. I suspect, in any case, that the courts would not do that when they are given a list of options and, if they were minor and technical matters, they may well not apply those heavier penalties in those circumstances. So perhaps our concerns will be dealt with in the way these laws are applied in any case.

That may also apply to amendment (50). We are concerned that, if contravention has been made because of a genuine belief that it was necessary to protect the health or safety of a person, including the respondent or the child, you should not be able to use the harsher penalties that are available. Again, we think this is important because it is a component of a number of our amendments which try to put the safety of the child first when dealing with these matters. Obviously, we do not believe that you should give priority to costs orders, bonds and other things that will be made available rather than to a proper assessment of whether the health and safety of the child was at risk.

There are two more provisions which, with the Attorney’s indulgence, I will address even if our time runs out. (Extension of time granted) Rather than adopting the new provisions, the normal rules of evidence should be required to apply to contravention proceedings. This comes about because of the change that is going to apply to the rules in cases that involve disputes over children, which we have welcomed and think is a great advance in the legal process to try to make the system less adversarial. We are concerned, though, that in contravention proceedings, where you actually now have quite serious penalties that are akin to a number of criminal penalties that might be available in other jurisdictions, not having the rules of evidence or not even having the flexibility to apply the rules of evidence, if that were appropriate, would be unnecessarily restrictive and possibly quite inappropriate. At the moment the court will be able to do that only in exceptional circumstances. It may be that the circumstances are not at all exceptional—in fact, they might be quite common—but the consequences of the contravention proceedings might be so serious that it may not be appropriate for the court to use this new less adversarial procedure for those contravention proceedings.

Finally, we are asking that the number of provisions in the act that deal with the provision of material by a whole range of people—family relationship centres, counsellors and others—about options that are available in a family breakdown situation do need to acknowledge that a legal pathway does exist and may in fact be appropriate for a number of cases. In wanting to encourage people to settle their matters outside the court—which we agree with—and in wanting to encourage people to be able to reach agreements without the expense of lawyers and court processes and all those sorts of things, we cannot pretend that that will actually be adequate in all circumstances. The legal pathway is a legitimate and appropriate pathway for a number of types of disputes. If the government is going to itemise the things that should be included in materials that will be provided to people, I think it would be quite misleading and wrong to not have the legal pathway as one option that should be able to be considered and that people should be made aware of. I hope that the Attorney will agree to those amendments.

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