Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Hansard source

by leave—I move opposition amendments (5) to (8):

(5) Schedule 1, item 18, page 7 (lines 5 to 15), omit the item.

(6) Schedule 1, item 20, page 7 (lines 20 and 21), omit the item.

(7) Schedule 1, item 26, page 10 (lines 9 and 10), omit the item.

(8) Schedule 1, item 27, page 10 (lines 11 and 12), omit the item.

These amendments relate to the government's proposed repeal of the criteria misleadingly described as the 'friendly parent' provision. Section 60CC(3)(c) of the act currently requires family courts to consider the willingness of one parent towards facilitating the other to have a meaningful relationship with the child. The provision has been criticised as discouraging parents' disclosures of family violence and child abuse for fear of being found to be unfriendly. The bill seeks to repeal this provision and replace it with considerations of the extent to which each of the child's parents has taken or failed to take the opportunity to participate in major long-term decisions in relation to the child, spend time with and communicate with the child and the extent to which each of the parents has fulfilled or failed to fulfil the parents' obligations to maintain the child. These criteria already exist in section 60CC(4).

The explanatory memorandum cites the evaluation of the Australian Institute of Family Studies and the Family Law Council report as the basis for the repeal of this provision. This is misleading. The Australian Institute of Family Studies found that some concerns were expressed that the provision discouraged the reporting of violence, but there was no statistical information to actually suggest that this was the case. The criticism was in fact voiced in the Chisholm report, and that remained uncited within the explanatory memorandum and was described as 'gossip' by the Family Law Council. I can refer the Attorney to the exact reference within the executive summary of that report.

The failure to facilitate a relationship between a child and a separated parent remains an important issue for the attention of a court and has been found to be an incident of emotional abuse in several reported cases. If the enhanced violence and abuse reporting obligations are supported, there can be no reason for a parent's obstructive behaviour to be excluded from consideration. It should also be noted that this consideration should not arise in the usual course if there are well-founded fears that contact with the other parent exposes the child to violence or abuse. The existing section 60CG makes this clear.

The unwillingness of a parent to facilitate a close and continuing relationship with the other parent is undoubtedly a relevant consideration when making parenting orders. In 2009, in the case of Villey and Prabsik, Mr Justice Watts ordered that a seven-year-old child be removed from his father's primary care to that of his mother. The relevant factual findings were that the mother had suffered a significant mental illness following the parties' separation as a result of the treatment she had suffered at the hands of the father during the relationship. Psychiatric examination of the parties revealed the mother to be fully recovered, with an excellent prognosis. She had rebuilt her relationship with the child in an appropriate manner, assisted by professionals. The father, however, was assessed as having a narcissistic personality, with overvalued ideas or a delusion that the mother remained ill, unsafe and should have minimal involvement in the child's life.

Mr Justice Watts accepted the mother's argument that it would be more likely for the child to have a meaningful relationship with both parents if he lived with his mother rather than with his father and that the child would be likely to suffer psychological harm by damage of his relationship with his mother if he continued to reside with his father. This finding would have been more difficult to come to had this consideration been present within the act. I therefore urge the House to support the coalition's amendments.

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