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

For the benefit of those who are following the proceedings, we will be moving a number of amendments, a number on which we will be dividing and a number on which we will not. I move amendment (1):

(1)     Schedule 3, item 1, page 4 (lines 18-22), omit the definition of family violence, substitute

family violence means:

(a)     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

(b)     conduct, witnessed by a child, in which a person intentionally causes physical or psychological harm to a member of the person’s family.

Amendment (1) is a critical issue of difference between the government and the Labor Party. It does not go to the wide-ranging aspects of the bill which, as the Attorney mentioned in his summing up, the Labor Party is very supportive of, but it does go to a critical issue where we think the government is taking us down the wrong path—that is, the definition being used for family violence. This amendment would keep the definition of family violence in its current form in one part and in another part would ensure that ‘conduct, witnessed by a child, in which a person intentionally causes physical or psychological harm to a member of the person’s family’ would be included in the definition of family violence.

We think it is incredibly important that, if you are going to change the definition of violence, you are sure that you are changing it in a way that will provide more protection, not less, to people who are in very difficult circumstances. We do not believe that sufficient work has been done to insert ‘reasonable’ before ‘apprehension’ in this provision. Although the Attorney-General puts considerable weight on the work of the House of Representatives Standing Committee on Legal and Constitutional Affairs, I think all of the people on that committee would agree that we were put under a very tight timetable by the minister—six weeks. We did not have any expert advice from the department or others relating to family violence and the consequence of changing this definition. That is no criticism of the department; it is because it was a change that was thought up, with good will, by committee members but without there being a clear understanding of the wide range of implications that could flow from it.

I might say that there is the potential—as the Attorney would know and other speakers might have referred to—to change the definition of violence to one that might be better if there is a concern that using this subjective definition disadvantages people against whom an allegation is made. In fact, all of the states have definitions which focus on the conduct of the party, not the impact on a victim, although some have a combined test with both objective and subjective components. Sufficient work was not done on this area. A proposal has not been made that has been thoroughly thought through. We do not believe it is appropriate in those circumstances to change the definition; therefore, our first amendment proposes to keep the definition in its current form, with the addition of making sure that ‘conduct, witnessed by a child’ is included in the definition.

We believe this is an area where the Senate Legal and Constitutional Legislation Committee, having been set up with the agreement of the government, could potentially take the time to consider the options that apply in different states. Certainly the Labor Party has an open mind about that, but we strongly feel that it is not appropriate to change the definition without understanding the consequences it might have and putting families that are in a vulnerable position at risk. That is why we feel so strongly about this particular issue. It is no disrespect to the other members of the LACA committee, who really were not given sufficient time by the government nor the resources that would have been necessary for us to really be sure that this change will not harm people.

I am very wary in this House that many speakers said that they are not 100 per cent convinced about the direction in which the bill is going but that they think it is a good change because people are not happy with the system as it is. I think the members for Denison and Lindsay and a number of others basically summed up their position as, ‘Let’s suck it and see whether these changes are going to work.’ I think that is a respectable position to put in a lot of the other areas where we know there are social changes and where there has been significant debate over the direction we are taking. I am not prepared to suck it and see when the consequences on the issue of violence could be so severe. We do not lose anything by taking a little more care in keeping the current definition in place and only changing it when we are satisfied that the definitions are workable. That argument might more easily be made if we were adopting a state definition or some combination of objective and subjective tests, but that is not happening. We feel very strongly that it is our obligation in the parliament not to change the law in a way which might make vulnerable people even more vulnerable. It is for that reason that I have moved amendment (1).

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Let me make it very clear that we are implementing a recommendation of the Standing Committee on Legal and Constitutional Affairs in relation to the definition of family violence. I am surprised at the comments of the shadow Attorney-General, because I think they are a reflection upon the diligence and competence of her colleagues who supported that resolution, and I am surprised that she, as a member of the committee, could not convince the committee, on the basis that more time was needed, that the Labor members of the committee should oppose the recommendation. But obviously she did not because this recommendation was supported by her colleagues on the committee, and it is a reflection upon them, it seems to me.

Let me say that this is not an issue that has been lightly accepted. My department consulted with key stakeholders on this matter. I turned my mind to the opposition’s approach, which simply removes reasonableness and revisits issues on which the committee had come to a concluded view. I think it also fails to recognise that, for instance, in South Australia legislation contains a definition that is similar to that proposed here. I think there are misconceived arguments by the opposition in supporting this proposal. The member for Gellibrand says that the courts have to get into the very tricky business of deciding what conduct would scare a reasonable person. I am advised that the Family Court, under the current law, looks at the extent of evidence to assess whether such a fear or apprehension is credible. Courts have to deal with these issues all the time—

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

So why do we need to change it?

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Because we want them to do it on the basis that there is a reasonable apprehension. I am simply saying that courts have to make a judgment all the time in relation to these sorts of questions. They have to deal with a whole range of issues of reasonableness in a whole range of circumstances.

The member for Gellibrand says that the amendment does not provide scope to consider the particular circumstance of the victim. The member for Sydney even gave an example of a constituent whose ex-husband engaged in repeated acts of violence and suggested these acts of violence would not be admissible in assessing the reasonableness of her fear of violence by him to her. This is simply not true. It is the reasonable person in the shoes of the victim that the court must consider, not some notional reasonable person.

Thirdly, the member for Gellibrand states that, when it comes to mediation, frankly it does not really matter whether or not one person’s fear is reasonable—that even an unreasonable fear will affect the power balance between the parties. It is simply not fair of us to force people into mediation if they are absolutely terrified, but it does matter whether one person’s fear is reasonable. If you do not have an objective test, people can claim what they want. A person who has never been exposed to violence in their life can claim fear of violence however irrational it may be. That person would then be able to avoid the family dispute resolution requirement.

The government amendment will allow a family dispute resolution practitioner to consider whether the ability of the party to negotiate freely is affected by issues such as history of family violence, the likely safety of the parties and the risk that a child may suffer abuse. If, after considering these matters, the practitioner considers that it would not be appropriate to conduct the proposed family dispute resolution, he or she may issue one of the new certificates.

It is also not appropriate to add the additional element to cover a child witnessing violence. This was also considered by the LACA committee. They did not see merit in adding to the existing definition. This amendment is not necessary, as the existing definition would cover the situation where exposure to violence causes a child to fear or be apprehensive for their own safety. The government rejects the amendment.

Question put:

That the amendment (Ms Roxon’s) be agreed to.

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

I move amendment (28):

(28)  Schedule 1, item 11, page 13 (after subsection (6) (after line 15) insert:

    ‘(6A)    Subsections (7) to (12) do not apply unless a sufficient appropriation is in force to ensure that every person who seeks a certificate referred to in subsection (7) (demonstrating attendance at family dispute resolution) may receive three hours of family dispute resolution services wholly funded by the Commonwealth’.

This amendment seeks to put into law a commitment that the government have made to provide three hours of free mediation for families who are going through family breakdown. This is something that the government committed to in the budget but refuse to put into law. We believe that if this is a serious commitment from the government then they will be prepared to put this amendment into law and promise to the public that their commitment to provide three hours of free counselling and mediation will be a rolled gold commitment.

After 10 long years, we on this side of the House have become used to identifying what are core and non-core promises by the Howard government. We do not feel satisfied that this is a commitment that the Attorney is going to keep. We are told to trust him. That is not sufficient for us. The government said that it would introduce compulsory mediation while at the same time ensuring that the public would be able to have three hours of mediation paid for by the government—and we welcome that. As we are going to go down the path of having compulsory mediation, that commitment should be put into the law.

We are not confident that we can simply accept a promise made by the Attorney of the day and think that in two, three or five years time the government—either of the coalition’s colour or our colour—will necessarily keep that commitment. We want to make sure that when introducing compulsory mediation we tie it to a legislative commitment that that free consultation will be made available to the public.

It is a very simple amendment. We do not see how the government can oppose it—it is its policy; it is in its budget material. If the government is serious about the promise that it has made to the public, it has no reason to vote against this amendment. If the Attorney is determined to have each and every member on his side of the House come in and vote against the provision of three hours of free mediation, let it be on his head how we use that in the community. This is something that is government policy; it is something that it should be prepared to commit to. There is no reason not to put it in the Family Law Amendment (Shared Parental Responsibility) Bill 2005. We call on the government to support this amendment, because it puts into law a commitment that it made through the budget. We support that commitment, but we want a guarantee. We are not prepared to just take you at your word, Attorney; we want this to be in the legislation.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I notice the honourable member had some comments to make about my bizarre behaviour, but I will make this point in relation to the amendment proposed: it would be a rather unique legislative course of action if we were to agree to such an amendment. I do not recall amendments being introduced by Labor governments in office in relation to commitments they made and commitments that they intended to keep. In doing so, we would be binding future governments and introducing a degree of inflexibility that I would not be prepared to accept. But if the honourable member is saying that she is going to go out, distort and suggest that, because this amendment is not accepted for the reasons I have outlined, that suggests some sort of lack of commitment on our part—

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

Well, doesn’t it?

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

No. It indicates how she is prepared to distort information provided on the public record and which is clear and unambiguous. I do not think it is worthy of you. We oppose the amendment.

Question put:

That the amendment (Ms Roxon’s) be agreed to.

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

by leave—I move amendments (39) and (40) together:

(39)  Schedule 1, after item 16, page 20 (after line 8) insert:

16A  After paragraph 63C(1)(c)

Insert:

             (d)    the cooling-off period referred to in subsection (1A) has expired.

16B  After subsection 63C(1)

Insert:

    ‘(1A)    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 the parenting plan is not made, revoked or varied as the case may be.’

(40)  Schedule 1, page 21, 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, other than a plan to which section 63D applies, 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.

The Attorney and government should have absolutely no problem in accepting these amendments. They reveal the hypocrisy of the Attorney’s view so far, which is that, no matter what his original opinions were, he is now just respecting the recommendations of the LACA committee. That is why he has a different view from me and from his original view on a number of the other amendments. In this case, the amendments are exactly what was recommended by the LACA committee. Recommendation 33 dealt with a cooling-off period.

The amendments provide for a cooling-off period. When parenting plans are reached without the parties necessarily having any advice or legal counselling from a family relationship centre or elsewhere, there is a seven-day cooling-off period. The LACA committee considered this and recommended that it was a good way of ensuring that people were not making a decision on the long-term benefits of their children at a vulnerable time or in the heat of the moment and that if, on reflection, they realised that they had made a bad decision or agreement that was not in the interests of their children they would not be bound by that agreement.

This is a specific provision which allows for a seven-day cooling-off period. It has been recommended by the committee. The Attorney says that he respects the views and recommendations of colleagues on the committee. Accordingly, I call on him to support these amendments or else show himself to be quite hypocritical on this matter.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I will deal with the amendments on their merits. As the honourable member knows, from time to time I have even accepted some of the ideas that she has proposed. In this case, I do not consider it necessary to include a cooling-off period—

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

You don’t agree with your colleagues.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

No, I consider on the argument—

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

You’re a hypocrite.

Harry Quick (Franklin, Independent) Share this | Link to this | Hansard source

The honourable member will withdraw that comment.

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

Mr Deputy Speaker, I withdraw.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

It is a question of argument. Parenting plans are voluntary agreements. They are not contracts; they can be changed at any time. I believe that parents who can make their own agreements and who can change their own agreements do not need cooling-off periods—end, game, match. That should have been a matter that the member would see quite clearly.

Question put:

That the amendments (Ms Roxon’s) be agreed to.

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

by leave—I move amendments (2), (38) and (54) together:

(2)    Schedule 1, item 4, page 5 (lines 6-12), omit the note, substitute

Note:   To remove any doubt, a decision by a parent of a child to form a relationship with a new partner is not a major long-term issue in relation to the child.

(38)  Schedule 1, after item 15, page 20 (after line 4) insert:

15A  Paragraph 63C(1)(b)

Repeal the paragraph, substitute

       ‘(b)    is or was made between the parents of a child free from any threat, duress or coercion; and’

(54)  Schedule 6, item 1, page 134 (after line 15) insert:

     ‘(ab)    to ensure that orders, injunctions and arrangements referred to in subparagraph (a)(ii) do not expose people to family violence; and’.

These three amendments deal with issues that the government agrees with. They were part of a range of amendments that were provided to the government a couple of weeks ago. I am very pleased that the government has seen the benefit of including these amendments in the bill. The Attorney might be able to assist on whether he intends to vote for these amendments or intends including them in his package of amendments which will be moved later. In any case, I think it is important to acknowledge these changes and to acknowledge that a number of Labor’s suggestions are practical ones and are important things to include in the legislation and that the government has been prepared to accept them.

In particular, two of these changes deal with a number of our concerns that relate to violence and, as people in this House know, it has been a major concern for us to have these matters included in the legislation. One is to ensure that, if a parenting plan is made under threat, duress or coercion, it would not be regarded as valid. Because we do have a large number of self-represented litigants in this jurisdiction, I think it is important to have that expressly provided for in the act. It makes clear that a parenting plan must be freely agreed to between the parties, not under some sort of threat, force or fear. I am pleased that the government has seen fit to include that provision in the amendments to this legislation.

The other two amendments deal with major long-term issues—moving something that is in a note into the provision itself to ensure that it is being given some force, and clarifying a definition, which it seems might have been changed through redrafting rather than by any intent, so that it is an object of the act that ‘people’ should not be exposed to violence. Whilst many of the provisions deal specifically with children—our priority in family law is to deal with the protection of children—it is of course a clear objective of everybody in this House to ensure that we do what we can to protect people, not just children, from violence. I am pleased that the government has indicated that it will agree to these three amendments.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Let me just make the point that we do not object to the principle behind the amendments. But the government will be pressing ahead with the amendments that I will be moving later, as outlined in the package, rather than accepting these amendments. The reason for this is very clear. Although the amendment proposed makes a note which currently appears under the definition of ‘major long-term issues’ a legislative provision, doing this will have little effect, but it may assist in making clearer the intention that repartnering is not of itself a major long-term issue. Particularly for non-represented parties, having it in the act may put it beyond doubt in their minds, even though it does not have any legal import.

Regrettably—and I do not know whether one should draw any inferences from this—the opposition amendment does not simply take the note and translate it into a legislative provision. It makes minor changes to the note. In addition, we do not accept those changes. That is why we are pressing ahead with the direct incorporation of the note in the legislative measure rather than, by implication, picking up further amendments, which I do not think were being proposed in an up-front way.

The government amendments also adopt a proposed opposition amendment to section 63C, which is the section that sets out what a parenting plan is for the purposes of the act. We do not believe the amendment is necessary, but it confirms the common law position that a parenting plan must be free from threat, duress or coercion. Government amendment (24) implements the views that I have received from a number of stakeholders that an objective of division 11 orders—which are orders to address inconsistencies between state family violence orders and family law orders—is to make it clear that the government’s policy of family violence not being tolerated is the approach to be taken. I oppose the opposition’s amendments for the reasons I have outlined, but I will be proposing separate amendments that I believe deal with the substantial issues.

Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to 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.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The amendments are not supported. The two-tiered hierarchy was a proposal considered by the committee, which concluded that the approach was appropriate. I have noted that during this debate members have, in a bipartisan way, continued to reflect the level of agreement that we saw before the committee during the inquiry itself. The member for Parramatta supported this provision and described the two-tiered best interest provisions as ‘excellent’. I suspect the reason we will not have a division on these amendments is that the honourable member for Gellibrand has not been able to dissuade her colleagues from the view that they support this measure.

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

Ms Roxon interjecting

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

That is a matter for you. Let me say that I regard the advice of the court as valuable, but I do not regard it as binding. Legislation is the prerogative of the parliament, and the parliament is giving advice for the courts to view these two matters as matters that should be addressed in priority. The others are factors that can be taken into account, but they are not all equal. Yes, I know that there are some judges who believe that family law is, in fact, owned by the court and that they will tell us what it is, but the Family Law Act is an enactment of this parliament. It is the obligation of the court to give us advice as to how that enactment is going to be lawfully implemented, but they are to be guided by it. I am surprised that the shadow minister would want to move from that situation, particularly considering the very strong support given to this measure by her colleagues.

Question negatived.

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

by leave—I move opposition amendments (27) and (52) together:

(27)  Schedule 1, item 11, page 13 (after subsection (5)) (after line 9) insert:

    ‘(5A)    The proclamation referred to in subsection (5) may only be made after the Accreditation Rules referred to in section 10A have been tabled in Parliament.

(52)  Schedule 4, item 36, page 77 (after line 28) insert:

        (3)    Without limiting subsections (1) or (2), the Accreditation Rules must provide:

             (a)    standards that require family dispute resolution practitioners to have adequate training to recognise the signs of family violence, even where no complaint of family violence is made, and make appropriate referrals;

             (b)   processes for regular monitoring of the quality and performance of family counsellors and family dispute resolution practitioners;

             (c)    rules that require family counsellors and family dispute resolution practitioners to provide their services in a manner which does not discriminate on the basis of race, religious background, language, ethnic background, gender disability, age, locality or socio-economic disadvantage.

These amendments deal with the accreditation rules that will apply for the new family relationship centres. I noted that in summing up the second reading debate the Attorney referred to the competency standards that are being worked through with the training body. All of that is an appropriate process, but at the end of the day it is still a job for government to ensure that there are standards and accreditation processes that can be enforced by the government. It is not adequate that, as the Attorney suggested, each family relationship centre should simply have an internal complaints process. The issue is what sort of external complaints process there is going to be.

I do not want us to take a backward step rather than a forward step with these relationship centres. One of the early problems with the Family Court was people’s concern that there was nowhere they could go to raise their complaints about the court. If we are going to encourage more and more people to resolve their matters through family relationship centres, which are going to be much more dispersed and run by a range of different organisations, we should ensure that we have some proper accreditation rules in place. Amendment (27) provides for the accreditation rules to be tabled before compulsory mediation through these family relationship centres and other services becomes part of our law.

In particular, amendment (52) outlines a number of items that we believe should be included in the accreditation rules. I admit that this is probably an unusual process, because the range of accreditation rules are not in the bill before us, but a number of things do appear in the bill and we do not see any reason why you could not include these specifications to put standards in place that ensure there is proper training for staff of family relationship centres so that they can recognise the signs of family violence—and, most importantly, that they can recognise those signs even where no complaint of family violence is made. All of us in this House know that issues around disclosure, such as people’s fear and embarrassment of disclosure, need to be taken into account. We know from talking with experienced counsellors and others that it is a very difficult area and that they need adequate training, experience and support to make sure they can identify these circumstances easily.

The amendment also provides for the accreditation rules to have a process for the regular monitoring of the quality and performance of family counsellors and family dispute resolution practitioners. Again, we do not want to be in a position where we are encouraging people to resolve their matters outside court, which I think is a very good idea, but are then caught without adequate accreditation standards or training in place and are requiring people to use services that might be handling the matters before them quite inappropriately.

I do not think that is likely to happen. We have a lot of good services in this country that are likely to apply to run these. Hopefully, the government will have a good procedure through their tender process of choosing those services which will be able to do this job well. It seems to me that one of the things that would effectively ensure that we have people providing quality services is to make sure that there is some monitoring of that. It seems to me to be pretty much government 101 to want to be able to have some standards in place to be able to monitor the work that is being done.

Finally, we are asking that the accreditation rules make clear that family counsellors and family dispute resolution practitioners have to provide their services in a manner which does not discriminate on the basis of race, religious background, language, ethnic background, age, locality or socioeconomic disadvantage. What we are trying to say here is that if we have government funded services, they need to be made available to everybody irrespective of religious or political views or other matters. As I said in my speech in the second reading debate in the House on this matter, it is fine that there are many differing views of what are appropriate family relationships, and that there are differing views that people might have on divorce, parenting and other things. I think the community is well served by having a diverse range of views. We need to make sure that government funded services do not see their service provision as an opportunity to try to persuade people to their point of view rather than to provide services of mediation or counselling that the government is paying them for. I hope the government can support these amendments. I think that they enhance the package rather than detract from it.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The amendments will not be agreed to. Let me just make it very clear that we have funded the Community Services and Health Industry Skills Council to develop competency based accreditation standards for training of family dispute resolution practitioners, counsellors and workers. It is a project guided by a steering committee with recognised experience. I do not want to pre-empt or restrict that project by prescribing matters now that have to be addressed in the rules. Although we expect accreditation rules to be made well in advance of the end of phase 2, I do not intend to be benchmarked in relation to those matters. The fact is there are existing arrangements in the family law regulations and the Family Relationships Services program approval requirements which operate at an individual and organisational level to ensure quality services. I think that is the appropriate way to undertake that task.

Question negatived.

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

by leave—I move amendments (29), (30), (31) and (32) together:

(29)  Schedule 1, item 11, page 13 (lines 34-5), omit

                      “, and that all attendees made a genuine effort to resolve the issue or issues”.

(30)  Schedule 1, item 11, page 14 (lines 1-6), omit paragraph (8)(c).

(31)  Schedule 1, item 11, page 14 after sub paragraph (iv) (after line 29), add

                 ‘(v)    at least one of the parties would fear for, or be apprehensive about, his or her personal well-being or safety, or that of a child, if family dispute resolution was to take place; or’

(32)  Schedule 1, item 11, page 15 (line 7), after ‘services’ insert

                      ‘, inability to make an appointment with family dispute resolution services within six weeks,’.

These amendments deal with a range of issues that go to the new process of mediation and the requirement that people attend mediation, obviously with the aim of resolving their parenting disputes but also as a prerequisite to filing any litigation in court if they have to go down that path in the future.

Three areas are covered. The first one revisits this issue of the definition of violence. It would not have been necessary to move this amendment if the first amendment moved in my name was accepted, but it has not been. I feel very strongly about this issue because I think that we are missing a serious point. Encouraging people to mediate and reach an agreement freely together on the long-term and future parenting of their children cannot be done in a fair and equitable way if somebody is absolutely terrified to sit in the same room as another person and try to negotiate that agreement. This is not in any way to try to encourage people to use violence or fear as a way of avoiding mediation.

I think that the rest of the structure of the act makes sufficiently clear that there is a necessity to go through this mediation in all circumstances where that is possible. I do not think that it should be up to a court or somebody else to make an assessment. In fact, in this situation, it is not a court; the somebody else is an individual person who might be working at the front desk of a family relationship centre, who would make an assessment of whether or not they feel that the violence that the person is afraid of is reasonable or not. As I say, there is simply no argument that reasonableness should come into it when we are trying to look at whether two people can freely negotiate an agreement about the future parenting of their children. If I have to go into that room and I am absolutely terrified, it does not really matter whether that is a terror that is legitimate or not to other people, it still means I will not be able to participate adequately to negotiate a fair agreement for the future.

I think that it is ignoring the extensive work that has already been done about the imbalance in power that often occurs in mediation. It is something that experienced mediators know that they need to deal with. I think that it is a really dangerous and retrograde step that the government is going to take if it is not prepared to make clear that, in those circumstances, it would not wish people to be forced through a process which keeps them in sheer terror.

The other two amendments also deal with mediation. One is to ensure that there is an exception to the need to attend mediation prior to filing litigation if the waiting lists are extremely long. We have been very supportive of the government’s introduction of the 65 family relationship centres and we have been supportive of the three hours of mediation that will be provided. We have reservations about whether it is going to be sufficient. We have reservations about the waiting lists that may exist. We do know that it is critically important for families to be able to deal with these matters at the right time in their relationships, which is not always immediately—sometimes it might be better for them to wait for a while. We are concerned that, if this is not made clear in the exception, people may be not only delayed in getting mediation but, if the mediation is not successful, they will then have been further delayed in being able to file in the courts.

Finally we make a proposal about the certificate of attendance. We obviously support the government’s view that you should encourage people to attend and genuinely participate in mediation as best they can. Perhaps there is another way it can be done, but the reasoning behind amendments (29) and (30) is to make sure that the assessment of only one person in a family relationship centre—on a basis which none of us will know about and will not be reviewable by a court—cannot result in a certificate which says, ‘You haven’t participated genuinely.’

This is an issue that has been raised with us by many people who already practise in the area and have great concerns about the consequences of requiring somebody else to issue a certificate of genuine participation. I do understand the government’s concerns in this area and we agree with the purpose, but I do not think that the provision adequately protects anyone from a decision being made by one person due to circumstances which no-one is particularly aware of, are not necessarily reviewable by the court and might have consequences within the court at a later hearing time.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The amendments are not agreed to. I will deal with them in the order that the member has dealt with them, which is not the numerical order. First, on the issue of fear and apprehension for wellbeing and safety, the exception that the member is proposing would be additional to the existing provisions that allow a matter to go directly to court in circumstances involving abuse or family violence or risk of abuse of a child or family violence if the matter was to be delayed. We consider that the existing exceptions are sufficiently broad to ensure the safety of vulnerable people. In this case, a person could claim they were scared of violence without a reasonable basis for it simply to avoid a dispute resolution process. The government amendments will allow a family dispute resolution practitioner to issue a certificate that dispute resolution not take place where the practitioner believes issues like possible coercion or a history of violence make it inappropriate.

On the six-weeks delay proposal, it is fine to say that these things ought to be benchmarked in that way, but the fact is that putting in place a mandatory provision of that sort would allow people to easily manipulate their situation in order to avoid dispute resolution. We do not want people attempting to avoid dispute resolution. A person could claim that there were no appointments available at times that suited them. They could insist on seeing one particular dispute resolution service although others were able to provide dispute resolution. That is the sort of manipulation that would be possible.

Finally, the reference to genuine effort was added to ensure that people take part in dispute resolution in a productive way; otherwise, one party could sit through the dispute resolution and not say a thing on the instruction of their lawyers in order to ensure they went through the process not in any meaningful way but simply to have a day in court. That is certainly not the way this system is going to work. People ought to be required to make a genuine effort.

Question negatived.

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

by leave—I move amendments (33), (34), (35), (37), (42), (43), (44) and (45) together:

(33)  Schedule 1, item 13, page 18 (line 17) omit:

                ‘equal shared parental responsibility’, substitute ‘joint shared parental responsibilities’.

(34)  Schedule 1, item 13, page 18 (line 21) omit:

                 ‘equal shared parental responsibility’, substitute ‘joint shared parental responsibilities’.

(35)  Schedule 1, item 13, page 19 (line 5) omit:

                 ‘equal shared parental responsibility, substitute ‘joint shared parental responsibilities’.

(37)  Schedule 1, item 13, page 19 (lines 7-8)

(42)  Schedule 1, item 29, page 26 (lines 23-4), omit ‘equal shared parental responsibility’, substitute:

                 ‘joint shared parental responsibility’.

(43)  Schedule 1, item 30, page 26 (lines 27-8), omit

                 ‘equal shared parental responsibility’, substitute:

                 ‘joint shared parental responsibility’.

(44)  Schedule 1, item 31, page 27 (line 6) omit

                 ‘equal shared parental responsibility’, substitute:

                 ‘joint shared parental responsibility’.

(45)  Schedule 1, item 31, page 27 (line 24) omit

                 ‘equal shared parental responsibility’, substitute:

                 ‘joint shared parental responsibility’.

This range of amendments deals with the same change but is required in a number of different provisions in the bill—that is, to change the term ‘equal’ to ‘joint’ as originally proposed by the Attorney-General in his exposure draft of the bill. This is an issue that both the Attorney-General and I have addressed in our speeches to date of dealing with people’s expectations about what family law can deliver.

The Labor Party is very keen to promote shared parental responsibility. We think that it is good for families and for children if both the mothers and fathers of children are able to engage in an active and caring way with their children even after family breakdown. But we are concerned, when there has been so much debate about having a presumption of equal shared parenting time, that to use the term ‘equal’ rather than ‘joint’ when talking about shared parental responsibility sends an incorrect message to the community about what these changes to the law actually do. I think the use of the word ‘joint’ emphasises that decisions by parents about the future of the child need genuinely to be made together. They need to be discussed together, people need to consult, as other provisions of the bill require, and those decisions, where possible, should be able to be made together in the best interests of the child. By using the term ‘equal’, which I know is terminology that the Standing Committee on Legal and Constitutional Affairs recommended, I think we edge a step closer to implying that children can somehow have their interests divided by a calculator—that, when we are talking about where it is that children are going to go to school or what religion they will practice or what sort of shared family arrangements there are going to be for their ongoing care, we can just sit down and type something into a calculator and split the child in half equally for each parent.

That is quite an offensive idea. It is not what people in this House mean when they speak about shared parental responsibility. We all know that there are many circumstances where an exact and equal division of time or responsibility is not possible and is not necessarily desirable. I think it is very interesting that the people who advocate equal shared parenting time—which of course has been rejected as a presumption but introduced as an important matter that courts and others must consider when reaching parenting plans—and who would like the government to go further acknowledge that, in most family situations, there would not be an exact 50 per cent division of shared time with the child. Most people who have been through this process, even if their experiences with the current family law are undesirable ones—we know many people have had undesirable experiences—acknowledge that that sort of equal division may not be workable, practicable or in the best interests of the child and a whole range of other things.

I am not sure that the proposed change would have any different legal effect. We propose this amendment not because we believe it might have some different legal effect but because we think it sends a useful message that we are talking about encouraging parents to be able to make decisions together, that there be a joint and shared responsibility for the future of children and that it is not about, ‘You take your 50 per cent and I’ll take mine.’ I think our amendment is more consistent with the rest of the direction the government is taking than the provisions that are currently in the bill.

It is another one of those areas in which the Attorney-General and I agree. The Attorney has since changed his mind following the recommendations of the LACA committee. I respect that that is why he has changed his mind but, as he indicated on another amendment of ours where he has not accepted the view of the LACA committee, each of these amendments should be judged on its merits. We believe these amendments are meritorious and we hope the government will consider them as such.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The amendments are rejected. I considered all the recommendations of the Standing Committee on Legal and Constitutional Affairs on their merits, and on this matter I am persuaded that the committee got it right. It was a committee of members of the government and members of the opposition. If somebody had proposed that we should have unequal shared parental responsibility, it would demonstrate to you what the alternative is. I notice that you are not proposing unequal shared parental responsibility, but my point is that the decisions are made by both parents and one parent is not more equal than the other in having their will accepted. When the government has clearly rejected the proposition of equal parenting time, I think it is rather fanciful to suggest that the adoption of this formulation in relation to a different issue—parental responsibility—in some way suggests that we are supportive of equal parenting time. The fact is that was rejected; it is not part of this package. The issue is substantial. That does not mean that people should not have equal parenting time if it is possible and reasonable—I know people who have negotiated on that basis—but the argument is being run on a false premise. I think the committee recommendation is perfectly appropriate for the parliament to endorse.

Question negatived.

Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to 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.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The amendments are not accepted, but I will briefly respond to some of the points made. I do not consider it appropriate to specifically add the failure to fulfil parental responsibility as a factor to be considered when determining whether the presumption of equal shared parental responsibility applies. A failure to fulfil parental responsibility has been strengthened in the best interest factors that the court must consider. It is not appropriate to place additional weight on consideration of this factor compared to others.

The bill seeks to address concerns about false allegations and false denials by the inclusion of the new cost provision that applies where a person has knowingly made false allegations or a false statement—and this clearly also covers false denials. This provision implements a committee recommendation. It is appropriate, given the high test that must be satisfied: a person must knowingly make the false statement. In such circumstances criminal penalties could also be applied.

On the issue of modification of enforcement provisions, I do not consider it is appropriate to implement the opposition amendment to limit the capacity of the court to take into account parenting plans or to vary existing parenting orders to those orders made since the commencement of the provision. It is appropriate for the court to consider what has been agreed since the parenting order was made. The new approach to disputes based on attendance at dispute resolution is likely to result in more agreements. Where a person has been acting for some time in accordance with an agreement, it is appropriate that this be taken into account when they are later faced with compliance action. This will encourage increased flexibility and provide a means for parents with existing orders to seek to revise those agreements without going back to the court.

In relation to less adversarial proceedings, I think the proposals that the member has in mind would be likely to undermine our quest to change the culture. We consider that contravention applications which often result in the need to vary parenting orders are likely to benefit from consideration in an environment that is child focused and less adversarial. Judges will still have the responsibility for managing these proceedings. In exceptional cases where criminal penalties may be warranted, the existing rules of evidence of course can be applied.

Finally, on the provision of additional information, the bill will insert a new part into the Family Law Act that requires lawyers, court counsellors and dispute resolution practitioners to provide information to separating people on the court’s processes and services. The amendment proposed by the opposition would affect the balance of this information to emphasise court processes. The proposed amendment would not assist in encouraging the cultural change. It would help lawyers, not children. For these reasons, we oppose the measures, but I do thank the honourable member for her constructive consideration of these matters and the amendments she has proposed, which we have looked at quite seriously.

Question negatived.

by leave—I present a supplementary explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005. I move amendments (1) to (27) together:

(1)    Clause 2, page 3 (at the end of the table), add:

(2)    Schedule 1, item 4, page 5 (lines 6 to 12), omit the note.

(3)    Schedule 1, item 4, page 5 (after line 12), at the end of the definition of major long-term issues, add:

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

(4)    Schedule 1, item 9, page 9 (line 1), omit “having contact”, substitute “spending time with and communicating”.

(5)    Schedule 1, item 9, page 10 (after line 12), after subsection 60CC(4), insert:

     (4A)    If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

(6)    Schedule 1, item 9, page 11 (line 12), omit “inform the court of the child’s views”, substitute “ensure that the child’s views are fully put before the court”.

(7)    Schedule 1, item 11, page 13 (after line 30), after paragraph (8)(a), insert:

           (aa)    a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution;

(8)    Schedule 1, item 11, page 17 (line 11), after “alleges”, insert “, as a consideration that is relevant to whether the court should grant or refuse the application,”.

(9)    Schedule 1, item 11, page 17 (after line 19), after paragraph 60K(1)(c), insert:

   ; and (d)    the document is a document of the kind prescribed by the applicable Rules of Court for the purposes of this paragraph.

(10)  Schedule 1, item 11, page 17 (lines 20 and 21), omit “The document referred to in paragraph (b) may be the application itself or another document.”.

(11)  Schedule 1, item 11, page 17 (lines 22 to 30), omit subsection 60K(2), substitute:

        (2)    The court must:

             (a)    consider what interim or procedural orders (if any) should be made:

                   (i)    to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and

                  (ii)    to protect the child or any of the parties to the proceedings; and

             (b)    make such orders of that kind as the court considers appropriate; and

             (c)    deal with the issues raised by the allegation as expeditiously as possible.

     (2A)    The court must take the action required by paragraphs (2)(a) and (b):

             (a)    as soon as practicable after the document is filed; and

             (b)    if it is appropriate having regard to the circumstances of the case—within 8 weeks after the document is filed.

(12)  Schedule 1, item 11, page 18 (after line 3), at the end of section 60K, add:

        (5)    A failure to comply with a provision of this section in relation to an application does not affect the validity of any order made in the proceedings in relation to the application.

(13)  Schedule 1, page 20 (after line 8), after item 16, insert:

16A  After subsection 63C(1)

Insert:

     (1A)    An agreement is not a parenting plan for the purposes of this Act unless it is made free from any threat, duress or coercion.

(14)  Schedule 1, item 25, page 25 (after line 32), at the end of section 64D, add:

        (3)    Without limiting subsection (2), exceptional circumstances for the purposes of that subsection include the following:

             (a)    circumstances that give rise to a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

             (b)    the existence of substantial evidence that one of the child’s parents is likely to seek to use coercion or duress to gain the agreement of the other parent to a parenting plan.

(15)  Schedule 1, item 43, page 32 (line 24), omit “amendment made by item 16 applies”, substitute “amendments made by items 16 and 16A apply”.

(16)  Schedule 3, item 8, page 69 (lines 3 to 5), omit the item, substitute:

8  Application of amendments

The amendments made by Part 1 of this Schedule apply:

             (a)    to proceedings commenced by an application filed on or after 1 July 2006; and

             (b)    to proceedings commenced by an application filed before 1 July 2006, if the parties to the proceedings consent and the court grants leave.

(17)  Schedule 4, item 64, page 105 (line 5), after “purposes”, insert “of”.

(18)  Schedule 4, page 116 (after line 15), after item 113, insert:

Income Tax Assessment Act 1997

113A  Subsection 30-70(1) (table item 8.1.1)

Repeal the item, substitute:

(19)  Schedule 4, page 116, after proposed item 113A, insert:

113B  Section 30-75

Repeal the section, substitute:

30-75  Marriage education organisations must be approved

                 You can deduct a gift that you make to a public fund covered by item 8.1.1 of the table in subsection 30-70(1) only if the company has been approved by the Minister under section 9C of the Marriage Act 1961.

(20)  Schedule 4, page 125 (after line 26), after item 138, insert:

138A  Application of amendments of the Income Tax Assessment Act 1997

The amendments made by items 113A and 113B of this Schedule apply to gifts made on or after commencement.

(21)  Schedule 5, item 5, page 129 (line 13), omit “and inform the court of that view”.

(22)  Schedule 5, item 5, page 129 (line 16), omit “Without limiting paragraph (2)(a), the”, substitute “The”.

(23)  Schedule 5, item 5, page 129 (lines 28 and 29), omit paragraph 68LA(5)(b), substitute:

             (b)    ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

(24)  Schedule 6, item 1, page 134 (after line 15), after paragraph 68N(a), insert:

           (aa)    to ensure that orders, injunctions and arrangements of the kind referred to in subparagraph (a)(ii) do not expose people to family violence; and

(25)  Schedule 9, item 17, page 168 (lines 8 to 11), omit the item.

(26)  Schedule 9, item 42, page 173 (lines 3 to 5), omit the item.

(27)  Page 180, at the end of the Bill, add:

Schedule 10—Orders of non-judicial officers of State courts of summary jurisdiction

Family Law Act 1975

1  At the end of subsection 39(6)

Add:

Note:   Under section 39A of the Judiciary Act 1903, the jurisdiction conferred by this subsection on a State court of summary jurisdiction may only be exercised by certain judicial officers of the court.

2  At the end of subsection 69J(1)

Add:

Note:   Under section 39A of the Judiciary Act 1903, the jurisdiction conferred by this subsection on a State court of summary jurisdiction may only be exercised by certain judicial officers of the court.

3  After Part XIVA

Insert:

Part XIVB—Orders of non- judicial officers of State courts of summary jurisdiction

114MG  Definitions

        (1)    In this Part:

federal family jurisdiction means jurisdiction in relation to matters arising under this Act.

ineffective order has the meaning given by section 114MH.

liability includes a duty or obligation.

non-judicial officer of a court of summary jurisdiction of a State means an officer of the court who is not a magistrate, or arbitrator, of the kind referred to in paragraph 39(2)(d) of the Judiciary Act 1903.

proceedings includes an initiating application.

proceedings for the order in relation to an ineffective order means the proceedings in or in relation to which the order was purportedly made.

right includes an interest or status.

        (2)    A reference in this Part to an ineffective order of a court of summary jurisdiction is a reference to an ineffective order that a non-judicial officer of that court purported to make.

114MH  Meaning of ineffective order

        (1)    A reference in this Part to an ineffective order is a reference to a purported order described in subsection (2). This subsection has effect subject to subsection (3) as it affects the meaning of a reference to an ineffective order in the context of a particular case.

        (2)    An order that a non-judicial officer of a court of summary jurisdiction of a State has purported to make is an ineffective order if:

             (a)    the officer purported to make the order before the commencement of this Part; and

             (b)    the order was made in the exercise, or purported exercise, of the court’s federal family jurisdiction.

        (3)    If a court, or a non-judicial officer of a court of summary jurisdiction of a State, has purported to affirm, vary, revoke, set aside, reverse, revive or suspend an ineffective order, a reference in this Part to the ineffective order is a reference to the order in the form in which, and to the extent to which, it purports or purported to have effect from time to time.

114MI  Rights and liabilities declared in certain cases

                 The rights and liabilities of all persons are, by force of this section, declared to be, and always to have been, the same as if each ineffective order of a court of summary jurisdiction had been an order made by that court, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.

114MJ  Effect of declared rights and liabilities

        (1)    A right or liability conferred, imposed or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction:

             (a)    is exercisable or enforceable; and

             (b)    is to be regarded as always having been exercisable or enforceable;

as if it were a right or liability conferred, imposed or affected by an order made by that court, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.

        (2)    The rights and liabilities conferred, imposed or affected by section 114MI include (but are not limited to) the right of a person who was a party to the proceeding or purported proceeding in which the ineffective order was made to appeal against that order.

        (3)    In this section:

enforceable includes able to be dealt with by proceedings under:

             (a)    Division 13A of Part VII; or

             (b)    Division 2 of Part XIIIA;

relating to a contravention of an order.

114MK  Effect of things done or omitted to be done under or in relation to rights and liabilities

        (1)    Any act or thing done or omitted to be done before or after the commencement of this Part under or in relation to a right or liability conferred, imposed or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction:

             (a)    has the same effect, and gives rise to the same consequences, for the purposes of any written or other law; and

             (b)    is to be regarded as always having had the same effect, and given rise to the same consequences, for the purposes of any written or other law;

as if it were done or omitted to be done to give effect to, or under the authority of, or in reliance on, an order made by that court, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.

        (2)    Subject to subsection (3), for the purposes of an enforcement law (see subsection (4)), any act or thing done or omitted to be done before or after the commencement of this Part:

             (a)    gives rise to the same consequences; and

             (b)    is to be regarded as always having given rise to the same consequences;

as if each ineffective order of a court of summary jurisdiction were an order made by that court, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.

        (3)    If, before the commencement of this Part, a court purported to convict a person of an offence against an enforcement law on the basis that an ineffective order was a valid order, nothing in this section is to be taken to validate or confirm that conviction.

        (4)    In this section:

enforcement law means a provision of a law of the Commonwealth, other than a law relating to contempt of court, that sets out a consequence for a person if the person:

             (a)    contravenes; or

             (b)    acts in a specified way while there is in force;

an order, or a particular kind of order, made by a court exercising federal family jurisdiction (whether or not the provision also applies to other orders of courts).

114ML  Powers of courts in relation to declared rights and liabilities

        (1)    A court may vary, revoke, set aside, revive or suspend a right or liability conferred, imposed or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction as if it were a right or liability conferred, imposed or affected by an order made by that court of summary jurisdiction, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order.

        (2)    In addition to its powers under subsection (1), a court (the review court) also has power to make an order achieving any other result that could have been achieved if:

             (a)    the ineffective order had been an order made by a court of summary jurisdiction, in the exercise of its federal family jurisdiction, in or in relation to the proceedings for the order; and

             (b)    the review court had been considering whether:

                   (i)    to vary, revoke, set aside, revive or suspend that order; or

                  (ii)    to extend the time for the doing of anything in relation to the proceedings for the order; or

                 (iii)    to grant a stay of the proceedings for the order.

114MM  Proceedings for contempt

                 If (whether before, at or after the commencement of this Part) a person has:

             (a)    interfered with a right conferred or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction; or

             (b)    failed to satisfy or comply with a liability imposed or affected by section 114MI in relation to an ineffective order of a court of summary jurisdiction;

the interference or failure is, and is taken always to have been, a matter that can be dealt with in the same manner as if the interference or failure had been in relation to a right conferred or affected, or a liability imposed or affected, by a valid judgment of that court.

114MN  Evidence

                 The court record, or a copy of the court record, of an ineffective order may be adduced in evidence to show the existence, nature and extent of each right or liability conferred, imposed or affected by section 114MI.

114MO  Part does not apply to certain orders

                 Nothing in this Part applies to an order declared to be invalid by a court before the commencement of this Part.

114MP  Jurisdiction of courts

        (1)    Subject to subsection (3):

             (a)    jurisdiction is conferred on the Family Court and the Federal Magistrates Court; and

             (b)    the Family Court of a State is invested with federal jurisdiction;

with respect to matters arising under this Part.

        (2)    Subject to subsection (3), each court of summary jurisdiction of each State is invested with federal jurisdiction, and jurisdiction is conferred on each court of summary jurisdiction of each Territory, with respect to matters arising under this Part.

        (3)    A court has jurisdiction in respect of a matter arising under this Part in relation to an ineffective order that relates to a matter arising under this Act (the initial matter) only if the court has jurisdiction in respect of the initial matter. The court’s jurisdiction under this Part is subject to the same conditions and limitations as would apply to it in dealing with the initial matter.

I have copious notes which I will give the honourable member to read later. Amendments (1) to (27) address issues that have come to the government’s attention since the Family Law Amendment (Shared Parental Responsibility) Bill 2005 was introduced. They also clarify the operation of certain provisions in the bill. The amendments demonstrate our continuing willingness and commitment to listen and respond to the views of stakeholders and deliver better outcomes for families. The amendments also include the three opposition amendments which I accepted and have already addressed. Whilst I do not think they are necessary, they do not undermine the government’s reforms, unlike many of the other amendments we have already dealt with.

One substantial issue which involved a number of state governments should be referred to by me. I have become aware that some registrars in the Magistrates Court of Victoria have been purporting to make consent orders in matters under the Family Law Act when they have no power to do so. The government amendments will add a new part XIVB to the Family Law Act 1975 to address the issue of ineffective orders made by officers of state courts of summary jurisdiction in the purported exercise of jurisdiction under the Family Law Act. These provisions will commence on royal assent.

The government amendments do not attempt to validate the ineffective orders but rather to create new statutory rights and liabilities for parties that may be exercised and enforced in the same manner as valid judgments of the relevant court. This model has been used in the past to deal with ineffective court orders, and similar legislative provisions have been upheld by the High Court. These matters have been the subject of an approach to me by the Attorney in Victoria. It is a serious issue. They need to be able to operate as they were made and this should ensure that this happens. The other amendments speak for themselves.

Question agreed to.

Bill, as amended, agreed to.