ADDITIONAL COMMENTS BY
COALITION SENATORS

1.1        Coalition senators agree with the majority report, except for the findings and recommendations made in relation to the repeal of the facilitation aspect of the 'friendly parent' provision, the new definition of 'abuse', the new definition of 'family violence', the repeal of the mandatory costs order provision (section 117AB), and the application provision in item 45 of Schedule 1 of the Bill.

Repeal of the facilitation aspect of the 'friendly parent' provision

1.2        Coalition senators agree with the general principles accepted by the committee in the majority report, that is, it is important for a child to have a relationship with his or her parents, and for each parent to facilitate a relationship with the other parent.

1.3        However, Coalition senators note that the Bill will undermine those principles by repealing those provisions in the existing paragraphs 60CC(3)(c) and 60CC(4)(b) which take account of a party's willingness to facilitate another party's involvement in a child's welfare. Such repeal attacks a key element of the shared parenting principles.

1.4        Coalition senators are unpersuaded that parties to proceedings are not disclosing concerns of family violence and child abuse for fear of being found to be an 'unfriendly parent'.

1.5        For this reason, Coalition senators consider that the existing obligation for a parent to facilitate a child's relationship with the other parent is appropriate, and consider that the existing provisions to this effect should remain in the legislation.

Recommendation 1

1.6        Coalition senators recommend that items 18 and 20 of Schedule 1 of the Bill not be supported.

New definition of 'abuse'

1.7        Coalition senators agree that any form of child abuse is serious and, in an ideal world, all allegations of child abuse would be investigated immediately they were raised. However, this is not an ideal world, and state and territory child protection authorities must work with the resources available to them at any particular time.

1.8        The Attorney-General's Department recognised that a definition of 'abuse' which encompasses each and every allegation of abuse could severely impact the state and territory child protection systems. This could well be to the detriment of those children suffering the types of abuse which the Bill aims to prevent.

1.9        Coalition senators also question whether state and territory child protection authorities could implement appropriate processes to distinguish the most substantive allegations of child abuse. Assuming that this were feasible, it is not a system change that could be implemented overnight.

1.10      Coalition senators consider that the word 'serious' in proposed paragraph (c) of the new definition of abuse in subsection 4(1) of the Bill appropriately seeks to avoid over-reporting and to focus limited child protection resources on substantive allegations.

1.11      For the reasons referred to above, Coalition senators do not support the majority report's Recommendation 4.

New definition of 'family violence'

1.12      Coalition senators endorse the objective of giving greater recognition to the breadth of behaviours comprising family violence. However, Coalition senators do not consider that the net should be cast so wide as to capture all human behaviours.

1.13      In evidence, Professor Richard Chisholm gave compelling evidence that proposed new subsection 4AB(1) is over-inclusive, capturing 'any behaviour that causes a family member to be fearful'.[1] Coalition senators believe such a provision undermines the objective of the Bill as it makes no allowance for the intent of the party giving rise to a 'fear'.

1.14      Professor Chisholm proposed an alternate provision – referred to in paragraph 3.74 of the majority report – which Coalition senators consider would better target family violence, by introducing a requirement for the behaviour to be intended to cause a family member to be fearful. Coalition senators recommend that proposed new subsection 4AB(1) be amended accordingly.

Recommendation 2

1.15      Coalition senators recommend that proposed new subsection 4AB(1) in item 8 of Schedule 1 of the Bill be amended to read:

For the purposes of this Act, family violence means behaviour by a person towards a member of the person's family that is violent, threatening, coercive or controlling, or is intended to cause the family member to be fearful.

Repeal of the mandatory costs orders provision

1.16      Coalition senators oppose the repeal of the mandatory costs order provision (section 117AB). While some submitters and witnesses argued that the provision is redundant, rarely used and discourages the disclosure of allegations of abuse and family violence, Coalition senators are cognisant of contrary arguments.

1.17      Coalition senators consider that, irrespective of its invocation, the mandatory costs order provision sends a strong message to family law litigants that the making of knowingly false allegations will not be tolerated. This is particularly important in circumstances where a prosecution for perjury will not necessarily follow.

1.18      Further, Coalition senators cannot justify the repeal of section 117AB on the grounds that it might be misunderstood by family law litigants – including on account of poor legal advice – as submitted by the Joint Parenting Association, among others. Coalition senators suggest that this is an area in which a public education campaign could prove useful.

Recommendation 3

1.19      Coalition senators recommend that item 43 of Schedule 1 of the Bill be removed from the Bill.

Application provision

1.20      In evidence, the Family Court of Australia expressed a preference for the substantive provisions of the Bill to apply only to those applications filed after the commencement date.[2]  

1.21      Coalition senators believe this is a highly pragmatic approach as it will make a clear distinction between those matters to which the new measures apply, and those matters to which the current arrangements will have continued application. Such an approach is more equitable to parties with matters already before the court since it will eliminate the imposition of additional costs and possible delays associated with compliance by affected parties with the new arrangements.

Recommendation 4

1.22      Coalition senators recommend that item 45 of Schedule 1 of the Bill be amended to apply only to proceedings instituted in the Family Court of Australia on or after commencement.

1.23      Coalition senators agree with and support all other recommendations in the majority report.

 

Senator Gary Humphries Deputy Chair	Senator Sue Boyce
Senator Helen Kroger	Senator John Williams

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