Policy on Family Law

Family law in Australia is based on the concept of “the child’s best interests”. But who is to say what is in the child’s best interests? This is a complete nonsense. “The child’s best interests” is a legalese expression which means “the judge’s best interests”. In practice it means the judge hearing the case gets to decide how the child will be brought up. We will replace “the child’s best interests” with “parental rights”.

“Parental rights” means the parents get to decide how a child will be brought up. This will mean the mother, and the mother’s husband. If the mother will not get married, it will mean the mother’s parents. For children born before we come to power, it will mean the biological parents.

Parental rights will persist even after death. If the parents get killed in an accident, they have a right to expect that their children will continue to be brought up as they intended, and that the children will not be adopted by a homosexual couple or brought up as Scientologists. Even if the parents cannot have custody of their children, they should get to decide who the foster parents should be. For example, each parent could rank proposed foster parents in an order of preference, and then the children would go to the foster parents whom both parents ranked the highest.

Parental rights can be lost only by a parent disowning the child. For example, if the biological father is aware that he is the father, but does not have anything to do with the child, he will lose his parental rights. But a father will not lose parental rights only because he was working overseas and could see the child only once a year for that reason.

If the parents separate, the usual thing is for the wife to get custody of the children. If we are elected, the usual thing will be that the wife will get custody during the week, and the husband will get custody on the weekend. A parent will not be able to move the children to another part of the country without the permission of the other parent.

Up until the 1970s, if a married couple separated, the husband would retain the family home. Since the 1970s, the law has been that the wife retains the family home. This encourages wives to break up with their husbands. We will change the law, so the husband will normally get the family home, unless the wife has done nothing to undermine the marriage, and the husband is entirely to blame for the marriage breaking down.

In legal proceedings about the custody of children, courts are “able to inform themselves as they think fit”. This means that a court can make a finding that something happened, when there is no good reason for anyone to believe it did happen. Family courts should not be able to accept written reports from witnesses, but witnesses should have to appear in person and give evidence. A psychologist or doctor should not be able to testify that a child said something, but should have to produce a recording of the interview with the child. So-called “child’s representatives” should be treated as expert witnesses, and should have to provide the parties with recordings of their interviews with the child. The court should not simply take their word for it that the child has a particular view.

The custody of children, and proceedings about de facto couples, are a matter for the State Parliament, but in the past these matters have been delegated to the Family Court. If any of our candidates are elected as a State member of parliament, we will introduce a private member’s bill called the Family Law Bill. This will provide that, in the absence of there being evidence of agreement to the contrary, the following will be assumed to have been agreed to:

  • The father will get the family home
  • The mother will get the family pets
  • The mother will get custody during the week
  • The father will get custody on the weekend
  • If both parents are Catholic, the children go to government or Catholic schools
  • If both parents are Protestant, the children go to government or Protestant schools
  • If one parent is Catholic and the other is Protestant, the children go to government schools
  • A party will not seek court costs
  • If one party wants to have a lawyer, he or she has to pay for the other party to have a lawyer
  • A court hearing will not take place in the absence of one of the parties
  • A party will not seek that another party be deprived of custody
  • If a party has been deprived of custody in the past, the other parties have no objection to him or her resuming custody

In addition, the Family Law Bill will provide for the following:

  • consultations between the child and the “child’s representative” have to be recorded and DVDs given to the parties
  • anyone who prepares a report that is taken into account by the court must appear as a witness and be available for cross-examination
  • natural parents of any children affected by the proceeding have to be made a party
  • the court cannot appoint a litigation guardian for a party if a party objects to that person being a litigation guardian, but must hear from the party

If we are elected as a State Government, we will set up a Family Court of the State, similar to the Family Court that they have in Western Australia.