Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

There are a number of issues here. I share the concern expressed by Senator Ludwig in relation to clause 60CC, which is headed ‘How a court determines what is in a child’s best interests’. We believe that is essential and we believe that the Democrats and Greens have really missed the point in their approach to this whole question. Perhaps it is best that I deal with the Democrat amendments in turn.

Firstly, I will deal with Democrats amendments (6) and (7), which purport to remove the link between the objects and substantive provisions in part VII. The government is of the view that it is very important to link the objects of part VII in section 60B to a range of substantive provisions of that part. An example of that is those provisions dealing with the factors to be considered when determining the best interests of the child. You can see in the objects listed that you even have ‘protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence’. These are very important objects—no-one would disagree with that—and we want to maintain the appropriate link between the objects provisions and the substantive provisions, to make it clear that the objects provisions have a direct influence on the more substantive provisions of this part. So I think that the Democrat and Greens amendments serve to de-link that and detract from those very important principles.

The Greens have said that they are worried about violence and are concerned about protection from harm, yet our objects are linked to the substantive part. Section 60CC(2) states, ‘The primary considerations are’—primary, not secondary—‘the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence’. That is very important.

I turn to the other amendments of the Democrats. We are now looking at (11) and (12). Again, they centre on removing this two-tiered approach, which I have just touched on with 60CC. What we have done there is set out, in determining the best interests of the child, those primary considerations that are:

(a) benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

They are the primary considerations and they give a clear direction to the court. We then go on to deal with additional considerations, and of course they deal with such things as ‘any views expressed by the child’, ‘the nature of the relationship of the child with each of the child’s parents’, ‘the willingness and ability of each of the child’s parents to facilitate a close relationship’ and ‘the likely effect of any changes in the child’s circumstances’. This is quite important, and it goes on; it is quite extensive. The court needs clear direction as to what is a primary consideration and what are additional factors. That is why a two-tiered approach is very important in ascertaining what is best for the child. The destruction of that by the Greens and the Democrats, I think, would certainly not advance the administration of family law in this country.

Moving on to Democrat amendments (14) and (15), the Democrats seek amendment (14) to amend the factors that the court must consider in determining the best interests of the child. The Democrats seek to remove the requirement for the court to consider, when making a determination of what is in the child’s best interests, the willingness and ability of each parent to facilitate and encourage the child’s relationship with the other parent. We think this is a very important factor to take into account. The government considers that a child benefits from both parents being involved in the life of that child, and that is of course subject to the primary need of protecting the child from harm. But to remove that as a consideration would be a retrograde step indeed.

Democrat amendment (15) seeks to remove the requirement that the court consider whether a person has fulfilled or failed to fulfil their parental responsibilities. Whilst the government believe that a child benefits from both parents being involved in its life—and that is important—we do have a provision which allows the court to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil their responsibilities as a parent and their responsibility to facilitate the other parent’s ability to fulfil their responsibilities as a parent. This includes the extent to which each parent has taken or failed to take the opportunity to spend time with the child, communicate with the child and participate in decision making about major, long-term issues in relation to the child. A factor to consider would be if a parent had been overseas for a long period of time and then came back, arrived on the scene and purported to exercise substantial control over the decision making and care giving in relation to the child.

It could also cover a situation where a resident parent has failed to comply with orders about facilitating the other parent spending time with the child—and the court must take that into account when looking at future parenting orders, because you can also have the reverse situation. You may have a non-resident parent disappearing and then coming back on the scene and demanding full time and involvement with the child, or you may have a resident parent denying a non-resident parent the opportunity to become involved with that child’s life and barring them from such access. That has to be taken into account. I had experience of both situations when I practised as a legal practitioner before entering politics. It is a very important factor for the court to take into account. To remove that would be a deleterious move indeed.

We are also looking at Democrat amendments (18) and (19). Democrat amendment (18) seeks to prescribe what parenting plans should entail. The government does not believe that that is necessary. The bill already sets out a wide range of issues that a parenting plan can deal with. Parenting plans have to be flexible—of course, one can only begin to imagine the different family scenarios that we have around Australia—and that is very important. The bill already requires advisers to inform parents that decisions made in developing parenting plans should be made in the best interests of the child.

Finally, as I understand it Democrat amendment (19) would add obligations that advisers should meet. The bill already contains a range of obligations that advisers have to meet in giving advice or assistance to people in relation to parental responsibility for a child and making parenting plans—and I have touched on that. This is intended to assist parents who are working cooperatively to develop safe and practical arrangements for their children after separation. These factors already reflect the primary considerations of the benefit to a child of having a meaningful relationship with both parents and the need to ensure the child’s safety by requiring advisers to inform parents about the child spending either equal time or substantial and significant time with both parents where this is reasonably practicable and in the best interests of the child. I suggest that that makes eminent common sense.

The Democrat amendment does not specify which factors advisers should inform parents about or what constitute the best interests of the child when parents are making a parenting plan. Democrat amendment (19) says:

... at the end of paragraph 63DA(2)(c), add “and of the factors used for determining those best interests”.

That is what I have been referring to—the factors used for determining those best interests. So what exactly does that mean? The bill has already set out what the court must consider in determining arrangements for what is in the child’s best interests when it is making a parenting order. The Democrat amendment imposes these factors upon parents who are working cooperatively to develop a parenting plan. It is inappropriate for advisers to tell parents that they have to consider the same matters that a court considers when that relationship has broken down—and this is the nub of the issue. We have factors for the court to consider once the relationship has broken down. When you have parents working together cooperatively, why add that further obligation on the advisers and the parenting plan? The parents are working well together anyway. They are working together cooperatively. Do not treat that in the same way as you do the situation where a relationship has broken down and the court has to make a decision and look at various criteria.

When parents are working together cooperatively, they are really in the best position to determine what is in the best interests of their children. The government would say, ‘Leave them well alone.’ Where parents are working together cooperatively, albeit that they are separated, that is perhaps the best result, rather than imposing these unwieldy requirements and criteria on them, which you would have in an adversarial situation where the parents are disagreeing with each other. You have a totally different situation. On one hand, the parents are disagreeing with each other and the court has to determine the situation. On the other hand, the parents are working cooperatively together. Do not cast the same criteria for that adversarial situation onto the situation where the parents are working cooperatively. For those reasons, the government opposes this group of amendments proposed by the Democrats.