Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

by leave—I move:

(2)    Schedule 1, item 13, page 19 (line 3), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.

(3)    Schedule 1, item 13, page 19 (line 7), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.

(4)    Schedule 1, item 13, page 19 (line 27), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.

(5)    Schedule 1, item 13, page 19 (lines 29 and 30), omit “equal shared parental responsibility” substitute “joint shared parental responsibilities”

(8)    Schedule 1, item 29, page 27 (lines 20 and 21), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.

(9)    Schedule 1, item 30, page 27 (lines 24 and 25), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.

(10)  Schedule 1, item 31, page 28 (line 6), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.

(11)  Schedule 1, item 31, page 28 (line 24), omit “equal shared parental responsibility”, substitute “joint shared parental responsibilities”.

It comes down to the language. This is an area where Mr Ruddock’s preference should have prevailed. I cannot say I have been agreeing with him lately but, in this instance, perhaps the parliamentary counsel got it right originally when trying to work out how this should be expressed in law. This group of amendments will change the use of the words ‘equal shared parental responsibility’ to ‘joint shared parental responsibility’. This is simply a matter of clear and unambiguous drafting. The drafters understood what they had to draft. They had to ensure that the definition relating to parental responsibility was clear but not a quantifiable thing that can be dissected into two equal parts. If that was what they wanted to do they would have used the word ‘equal’. What we mean by shared parental responsibility is that the parents exercise that responsibility together—that is, jointly.

There are many examples in the law where the word ‘joint’ is used to convey that. The parliamentary counsel would have drawn on their experience, as would Mr Ruddock when he agreed to the use of the word ‘joint’ rather than ‘equal’. You do not want the problems that might arise where definitional issues create the argument so that people argue about the words rather than the true outcomes. In the second reading debate, I talked about the importance of creating realistic expectations in this area. The risk of using the word ‘equal’ is that it creates and has the potential to create a false expectation that we are talking about something that is quantifiable: a quantifiable time.

As we know, there is bipartisan agreement against a presumption of equal parenting time. We should not confuse members of the public by using language that sounds like equal time when we mean something completely different. Family law is an area with many self-represented litigants. In fact, at estimates I had the opportunity of talking to the registrar of the Family Court about self-represented litigants and trying to help them work through the issues. It is not always easy for the registrar and the court to deal with this area. We do not want to create even more confusion in this area. I think it is more important to ensure that the wording is clear and that unambiguous language is used. In this case the Attorney-General’s original phrase ‘joint shared parental responsibility’ was the appropriate phrase to use.

The Senate committee also recognised this problem, although it suggested dealing with it by adopting a definition of equal shared parental responsibility. In our view, that becomes a very complex solution when a simple one would do and, as I have suggested, the simple one is to go back to the original wording. The word ‘joint’ is sensible—‘joint shared parental responsibility’ does the trick very well. It is clear and unambiguous language. It should be adopted. The government will go through a complex explanation of why they have shifted from the word ‘joint’ to ‘equal’. They will say it creates greater clarity, I suspect. They will then have to say that it is the problem of joint that needed to be clarified. I am sure they will try that one as well but, in truth, I think the government will struggle to explain why they have shifted.