Natasha Stott Despoja (SA, Australian Democrats) Share this | Hansard source

I will address my comments to the Senate, not just the gallery. The amendments that have been referred to, (17), (22) and (23), are to omit the provisions outlining the operation and effect of the presumption of equal shared parental responsibility. They will also omit the consideration of equal time or substantial and significant time arrangements. On the issue of presumption, the notion of joint parenting is of course preferable where it is in the best interests of the child. I do not presume to say what is in the best interests of the child; I just know that that has to be taken into account. But the presumption detracts from the appropriate, open and individual assessment of what is best for each child’s unique circumstances. The Democrats are supportive of the concept of shared parental responsibility and strongly believe that all parents have a moral and legal responsibility to care for their children to the best of their abilities. However, we do have a number of concerns about the practicalities and possible outcomes of enshrining the presumption in law.

The court needs to be free to decide each case on its merits, and where—for whatever reason—shared parental responsibility is not in children’s best interests the court needs to be able to make this decision. So we consider that the presumption of equal shared parental responsibility as a starting point for determining where a child lives after parents separate generates more of a focus on parents’ rights than on what is in the child’s best interests. I am not going to stand here and say what is in the child’s best interests; I am going to let other people make that determination based on the child’s experiences and their unique circumstances. We consider that the current provisions in the bill objectify the child in the discussion, and the issue becomes one of entitlement. Again, it is a parent-centric notion.

The Democrats disagree with the inclusion of the provisions directing time to be spent with each parent. The focus on time that children should spend with each parent restricts what should be a lateral approach to deciding options for quality parenting after separation. In addition, it places responsibility for the maintenance of the relationship on the children, who will be forced to divide their time between parents. So the effect of the presumption, when coupled with the court’s requirement to consider whether it is equal or substantial and significant time, is arguably to create a de facto presumption and to compound the divergence from consideration of what is best for the children. The Democrats have serious concerns about this, and therefore we oppose the current provisions. As Senator Ludwig was quite right to point out, I should have put that on record earlier, as we are dealing with a range of amendments and proposals to this particular schedule.

Question negatived.

The Democrats oppose schedule 1 in the following terms:

(17)  Schedule 1, item 13, page 19 (line 3) to page 19 (line 28), section 61DA, TO BE OPPOSED.

(22)  Schedule 1, item 31, page 28 (line 1) to page 30 (line 18), section 65DAA, TO BE OPPOSED.

(23)  Schedule 1, item 31, page 30 (line 25) to page 31 (line 9), section 65DAC, TO BE OPPOSED.