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Wednesday, 17 November 2010
Page: 2695


Mr McCLELLAND (Attorney-General) (9:32 AM) —I move:

That this bill be now read a second time.

The bill responds to the High Court of Australia’s decision in the case known as MRR v GR [2010] HCA 4 which casts doubt on certain parenting orders made under the Family Law Act 1975.

The High Court, in MRR v GR, held that a court has no power under the Family Law Act, where parents are to have equal shared parental responsibility for their child, to make an order that the child spend equal time with each parent, unless it has first found, under section 65DAA of the act, that it is reasonably practicable for the child to spend equal time with each parent.

The bill has two purposes.

First, it ensures that parenting arrangements under orders affected by the High Court decision continue to have effect. Second, it streamlines procedures for orders that are made in the future that provide for parents to equal shared parental responsibility for their child.

Creation of statutory rights and liabilities in relation to parenting orders

The first purpose is achieved by the bill creating new statutory rights and liabilities for parents who have, on or after 1 July 2006, obtained orders, on an interim or final basis, that were made without meeting certain of the requirements under section 65DAA of the Family Law Act.

The approach taken under the bill differs depending on whether or not the order was made with the consent of all the parties to the proceedings.

For an order made without that consent, the bill creates rights and liabilities, where the child’s parents are to have equal shared parental responsibility, if the court or Family Court Judicial Registrar making the order did not give consideration as to the reasonable practicability of the child spending equal time, or substantial and significant time, with each parent. These requirements arise under paragraph (b) of subsection 65DAA(1), and paragraph (d) of subsection 65DAA(2), of the act respectively.

To avoid cost and complexity for parents who have agreed on parenting arrangements for their children, orders made with the consent of all the parties to the proceedings are treated differently.

For orders made with that consent, the bill creates rights and liabilities, where the child’s parents are to have equal shared parental responsibility, where the court or the Family Court Judicial Registrar or the Family Court or Federal Magistrates Court Registrar making the order did not consider the matters set out in subsections 65DAA(1) and (2) of the Family Law Act.

These matters are, first, whether it is in the child’s best interests to spend equal time, or substantial and significant time, with each parent, secondly, whether those arrangements would be reasonably practicable and, finally, whether an order for the child to spend equal time, or substantial and significant time, with each parent should be made.

The requirement, when deciding to make a particular parenting order under the Family Law Act, to regard the best interests of the child as the paramount consideration, remains.

The rights and liabilities created by the bill are declared to be the same, and always to have been the same, as if the court had considered the relevant matters under section 65DAA of the Family Law Act before making the order.

Further, any act or thing done, or omitted to be done, in relation to the rights and liabilities created by the bill will have the same effect and consequences, and are taken to have always have had the same effect and consequences, as if done, or omitted to be done, in relation to a parenting order made under the Family Law Act. Past acts validated will include any civil enforcement action taken to secure compliance with the order, including the imposition of sanctions under division 13A of part VII of the act.

The approach taken by the bill is based on a similar approach upheld by the High Court of Australia in a case known as R v Humby; ex parte Rooney (1973) 129 CLR 231.

To ensure that people’s rights are protected, the bill does a number of things.

The new rights and liabilities are exercisable and enforceable, and are to be regarded as always having been exercisable and enforceable in the same way as if they were rights or liabilities arising under a parenting order made under the act.

Courts are given powers to deal with the new statutory rights and liabilities including the power to vary, revoke, set aside, revive or suspend them.

Appeal rights—including rights of review—as well as rights in relation to orders made without power are preserved by the bill. These rights apply as though the original orders had been parenting orders under the Family Law Act.

Parents will be able to apply to a court for fresh parenting orders where arrangements under orders made in contested proceedings are not reasonably practicable.

Finally, the bill will not validate or confirm any purported conviction of a person for an offence by a court on the basis that a parenting order was a valid order.

These measures will provide certainty for families by removing doubt about the status of the rights and liabilities attaching to parenting orders that may be affected by the High Court’s decision.

The second purpose of the bill is to amend the Family Law Act to provide that courts in future proceedings may, but are not required to, consider the matters set out in subsections 65DAA(1) and 65DAA(2) of that act before making an order—that is, an order with the consent of all the parties in the proceedings, providing for parents to have equal shared parental responsibility for their child.

This amendment will ensure that appropriate weight is to be given to parenting arrangements agreed by parents.

It reflects the position taken under the Family Law Act, since 1996, in relation to whether or not the court, when deciding whether to make a parenting order with consent, needs to consider each of the matters currently set out in subsections 60CC(2) and 60CC(3) of the act, in determining what is in the child’s best interests. I commend the bill to the House.

Debate (on motion by Mr Andrews) adjourned.