Dissenting Report by the Australian Labor Party
Labor Senators’ agree with almost all of the
recommendations of the majority report.
In particular, we agree that this is an important Bill
that could substantially improve the family law system by encouraging
settlement of disputes without the stress and expense of court and encouraging
involvement of both parents in the lives of their children after separation.
The changes to allow more flexibility in court procedures for cases involving
children are also very welcome.
We are also very pleased the Government Senators have
agreed with the Opposition’s position that a cost penalty for false allegations
should be dealt with after the Australian Institute of Family Studies has
completed its research on violence and family law. This is a commonsense
proposal and we hope the Government now takes this advice.
1.4 We also strongly agree with the recommendation that
three hours of Commonwealth-funded family dispute resolution should be
available to those people who do not have a Family Relationship Centre nearby.
It is unfair to require compulsory attendance at a
service when that service is only available free-of-charge to those Australians
fortunate enough to live near a Family Relationship Centre. To do this would
discriminate against Australians living in regional, rural and remote areas. It
would also breach the spirit of the Prime Minister’s pre-election promise that
under the new family law system ‘the first three hours of dispute resolution
sessions will be free.’
Although we agree with most of the majority report, we
do disagree on three very important issues: a cooling-off period for parenting
plans; the proposed change to the definition of family violence and the use of
the term ‘equal shared parental responsibility’.
Cooling-off period for
The majority rejects the proposal for a 7-day cooling
off period for parenting plans. It argues that such a protection could ‘stifle
what is intended to be a flexible document’.
We do not see the logic of this argument. In the
context of agreements that could last for many years, a 7-day cooling off
period is hardly a serious obstacle to flexibility. It would be, however, a
useful protection in cases where people might feel that they have been cajoled
or bullied into an agreement against the interests of their children or
On other issues, the majority has deferred to the
recommendations in the LCAC report. On this issue the majority has chosen to
cast aside a very sensible suggestion of the LCAC report with very little
discussion or explanation.
Labor Senators recommend
a 7-day cooling off period for parenting plans.
Definition of family
We agree with the majority that changes to the
definition of family violence should not be taken lightly. For that reason, we
believe that the proposed change from a subjective to an objective test (based
on whether the victim has a ‘reasonable’ fear) should be deleted from this Bill
and reconsidered only after the Australian Institute for Family Studies (AIFS) has
completed its research.
The Committee heard compelling evidence that an
objective test could have harmful affects on the ability of the family law
system to deal with all cases involving family violence. As a result, we
believe more careful consideration is needed before making this change.
On the issue of false allegations, the majority has
accepted that it is more sensible to delay change until after the AIFS research
is complete. There is no reason that this argument does not apply with equal
validity to the definition of family violence.
We appreciate what the majority hopes to achieve with
its recommendation to amend the definition of family violence further. However,
there is a risk that this will merely add to the complexity and uncertainty of
the definition. We would prefer to maintain the current definition until the
Labor Senators recommend retaining the existing
definition of family violence and reconsidering the issue once the Australian Institute
of Family Studies research is
‘Equal’ vs ‘Joint’
shared parental responsibility
We agree with the several submissions that raised the
concern that the change from the term ‘joint shared parental responsibility’ to
‘equal shared parental responsibility’ will contribute to false expectations
about the effect of the changes made by this Bill.
Given the nature of parental responsibility, which is
not a quantifiable thing that can dissected into two equal parts, ‘joint’ is
clearly the more accurate, plain English word to describe what is intended. In
an environment of many self-represented parties, the use of clear, unambiguous
words must be a priority.
We do not agree with the majority that the problem
could be solved by providing a definition of the term, especially as the
majority makes no attempt to offer such a definition.
Labor Senators recommend changing the term ‘equal
shared parental responsibility’ wherever it appears in the Bill
to ‘joint shared parental responsibility’.
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