Julia Irwin (Fowler, Australian Labor Party) Share this | Hansard source

The Family Law Amendment (Shared Parental Responsibility) Bill 2005 comes to this House as another attempt by government to try to get right the difficult issue of Australia’s family law system. As a member and the deputy chair—and you, Mr Deputy Speaker Quick, are a member of the committee—of the Standing Committee on Family and Community Affairs, as it was known in the last parliament, I can say that this issue is one that has demanded a great deal of thought and concern. In the foreword to the committee’s report, the committee chair, the member for Riverina, spoke of the impact on her of the 14 young people who gave evidence to the committee. She singled out one young person, Jack, who gave the committee his story by way of four drawings which showed in a very direct way the impact of family separation on children. Jack’s drawings gave the report its title, Every picture tells a story. But to put that into perspective we must realise that Jack’s story of family separation is in some way repeated in the lives of more than one million Australian children who today are affected by family separation.

This is a major issue, Mr Deputy Speaker, as you do know, affecting a very large part of our young population. We should not forget the parents, grandparents and others affected by family separation. Family breakdown in Australia is estimated to cost between $3 billion and $6 billion a year, but the cost in human terms—in the terms shown so graphically in Jack’s drawings—represent a cost that no Australian child should be asked to bear.

For the sake of those one million Australian children alone, this parliament must set itself the task of drafting a family law system that brings fairness and transparency to all involved. We must examine with a fine toothcomb the proposals put forward by the government in this bill. We have to draw on all of our experience and the advice of experts to make sure that what we are putting in place not only will work in the best interests of the children affected but also will provide a measure of certainty and justice to the hundreds of thousands of parents caught up in our family law system.

We must also consider the effect of these changes in the light of other changes now working their way through our social and economic systems. We must consider the impact of the government’s so-called Welfare to Work changes. We must consider the implication of changes to our industrial relations system and we must also look at the impact on the balance between work and family issues of things such as the cost and availability of child care. But in all of this we must not lose sight of the impact on the children involved and, as far as possible, act in their best interest and allow them, when appropriate, a say in the outcome.

In looking at the specific measures contained in this bill, I will begin with the introduction of a rebuttable resumption of shared parental responsibility. This measure was one of the recommendations from the House of Representatives Standing Committee on Family and Community Affairs report Every picture tells a story. In its conclusion, the committee gave its definition of shared parental responsibility as:

… involving a requirement that parents consult with one another before making decisions about major issues relevant to the care, welfare and development of children, including but not confined to decisions about education, religious and cultural upbringing, health, change of surname and usual place of residence.

The committee added that this should be outlined in a formal parenting plan.

It should be noted that the Family Law Reform Act 1995 was said to have intended to create a rebuttable presumption of shared parenting, but the evidence given to the committee’s inquiry clearly indicated that what had happened in the courts and in the community after those changes did not reflect the intentions of the parliament when those reforms were enacted. That is worth noting when we look at the possible outcomes from these changes. The 1995 reforms may have changed the terms ‘custody’ and ‘access’, but their replacements, ‘resident’ and ‘contact’, have effectively taken on the same meanings. It is significant that, in many individual submissions to the committee, separating parents said that they acted on legal or other advice that maintained a winner or loser situation. As a result, the committee recommended that the terms ‘resident’ and ‘contact’ be dropped, to be replaced by family-friendly terms such as ‘parenting time’.

I have no difficulty with the concept of shared parental responsibility, but I do think that the House should be aware that it is not a concept that will be easily understood in the community. Unless it is very well explained in each case, we will find ourselves left in the same position that we have been in since the 1995 reforms. I should add that I do not see the basic three hours of free mediation provided by the proposed family relationship centres as being able to ensure that all parties fully understand the concept of shared parenting, but I will return to that later.

I want to move on to the proposal to require the court to consider equal, significant and substantial shared time with both parents. The committee expressed its view that shared residence arrangements should become the norm wherever practical, rather than the current emphasis on sole residence. The committee noted the 1997 ABS figures that showed that only 2.6 per cent of children in separated families were in a situation that could be described as shared care. By contrast, 74 per cent of children had contact with the non-resident parent less than once a week. In a 2000-01 survey undertaken by the Family Court of Australia, residence was awarded to the mothers in 78.4 per cent of cases where there was a consent application, in 75.7 per cent of cases that were settled after the commencement of litigation and in 69.2 per cent of cases that were tried. In the overwhelming number of cases, the mother was awarded residence.

When it comes to contact agreed to be granted to a non-resident parent, Family Law Court figures show that only 12.5 per cent of fathers were granted contact for more than 108 days a year. This figure rises to 18.2 per cent in settled applications and 29.5 per cent in judicially determined matters. I should add that the magic figure of 109 nights is a cut-off for the Centrelink parenting support payment, which has consequences for the income of residential parent.

It was clear that community expectations, and to some extent court decisions, place residence in the hands of mothers. The committee concluded:

... the current experience with sole residence orders results from the distinctions between residence and contact both in the legislation and in community perception.

The committee suggested that, to overcome the 80-20 outcome, language around shared post-separation parenting needs to be devised which is neutral and reflects assumptions that children will be given the maximum opportunity of spending significant amounts of time with each parent. I would have to add that I think it would take more than a change of language. In fact, it would require a major shift in community attitudes for shared parenting to become the rule rather than the exception.

With regard to the changes which will require courts to consider equal, significant and substantial shared time with both parents, changes to the law alone will not bring this about. A major shift in community attitudes would be necessary before equal shared parenting becomes more common. So I have to ask whether the government is not putting the cart before the horse when it comes to these changes. By requiring the court to consider equal shared time, the complex proceedings of the family law system can only be further complicated. The committee noted that only one jurisdiction in the English-speaking world has a rebuttable presumption of equal time.

I should also add from the committee’s report some concerns regarding the idea of a rebuttable presumption. In its submission, the Attorney-General’s Department stated:

... should an equal time presumption be introduced into the Family Law Act, one possible outcome of its operation could be that it would effectively replace the principle that the best interests of the child are the paramount consideration…

The Attorney-General’s Department went on to add:

Presumptions in legislation work best where they represent the norm or usual situation. …

As I have already pointed out, shared parenting is far from being the norm in Australia. Other problems identified by the committee in relation to shared-time parenting were that there are dangers in a one-size-fits-all approach, and in cases where there is ongoing conflict children may be at risk of exposure to such conflict. The committee also found that family-friendly workplaces are rare, as are the financial resources necessary to support two comparable households. Other factors include the lack of child-caring capabilities in some cases. There is also the matter of distance between households, which may create problems for transport and schooling, and there is the not uncommon further complication of combined families. The committee was left with the conclusion:

In the end, how much time a child should spend with each parent after separation, should be a decision made, either by parents or by others on their behalf, in the best interests of the child concerned and on the basis of what arrangement works for that family.

That is a difficult task and one which I am not yet convinced the measures in this bill will fully address.

The bill also seeks to introduce compulsory mediation before litigation in family law matters. I should point out that a form of compulsory mediation is already a part of the family law system. According to the family law court of Australia, for every 100 applications initiated, 58 involve a mediation or conciliation event. Of those 100 applications, only 13 proceed to a trial hearing and only six will be heard to judgment. It is fair to say that mediation and conciliation are already part of the family law system.

As far as mediation and the other changes in this bill are concerned, there is the introduction of less adversarial court processes for cases involving children, the promotion of parenting plans as agreed between parents without lawyers and an increase in family relationship services. There is an underlying assumption in this bill that, when it is introduced, all will be well—that the complexity of the family law system will be swept away and everyone will be happy. But, as I am sure the other members of the family and community affairs committee would agree—and this was a bipartisan report—this is a most difficult issue and there are no easy solutions. As the committee concluded:

Despite the intention of the Family Law Reform Act of 1995, shared parenting and shared physical care have not become a reality for the vast majority of separated families. There are still winners and losers and children are still treated as the spoils of divorce and separation. Whilst legislation cannot make people behave reasonably or be good parents, it can provide them with a template within which to develop their own parenting responsibilities ... The committee believes that shared parental responsibility needs to become the standard. It believes that this can be achieved in part by making specific adjustments to the legislation.

Having looked closely at possible changes to legislation, the committee concluded:

In the light of all the evidence the committee believes that all disputes about post separation responsibilities not involving entrenched conflict, family violence, substance abuse and child abuse, including sexual abuse, must be removed from adversarial court processes.

That conclusion led the committee to look to redesigning the legal system for family friendly outcomes. The committee took its lead from Professor Parkinson, who urged:

So I think we have some fundamental rethinking to do, not only about the law—maybe that is the easiest part—but also about the systems by which we adjudicate and resolve ongoing conflict between parents and children ...

This view was supported by Professor Moloney of the Department of Counselling and Psychological Health at La Trobe University. He called for:

... a less formal tribunal system that would be chaired by one or more individuals who have an in-depth understanding of child development and family dynamics and who, whilst retaining their authority, can engage directly and respectfully with family members.

Professor Moloney went on to describe a second benefit of a tribunal related to the involvement of lawyers. He said:

I think family members need to feel that they have been heard and that they can say what they need to say, not in a manner filtered by a barrister through legally modified language but directly and in their own language, to a decision maker who has the skills to check that he or she has indeed heard accurately.

While the suggested tribunal approach may be restricted to contact disputes initially, it is in this regard a model similar to that proposed by the Attorney-General’s Department and the Family Law Council. This legislation effectively puts such a tribunal in cold storage—which I am very disappointed about—to be thawed out only in the very likely event that the proposed system of mediation through family relationship centres is not successful.

By then, another committee will have revisited this issue and no doubt recommended the same seven-step approach recommended in Every picture tells a story. But, in the meantime, hundreds of thousands more families will face the unworkable family law system. I would definitely like to be proved wrong, but I greatly fear that the proposed family relationship centres will be a poor substitute for a tribunal. Rather than a first-stop shop for separating couples, the mediation will be little more than another hurdle to be crossed. With the exclusion of lawyers, the mediation process becomes a stand-off rather than a meaningful attempt at resolution.

Under the proposed tribunal, lawyers could be admitted or excluded at the discretion of the tribunal, allowing any legal points to be dealt with openly. I can imagine a typical mediation before the family relationship centre where both parents turn up with a list of demands drawn up by their solicitors. Do not think that will not happen. While we might like to think of family relationship centres as the first stop for separating couples, I think it is a safe bet to assume that their solicitor’s office will be the first point of contact no matter what system we have. Given the consequences for all parties of any outcome, one would be a fool not to speak to a solicitor. I know I would speak to a solicitor before any mediation. That is definitely not going to change under these reforms. I hope that these reforms will make a difference to this very difficult area of law, but I have to admit that I am very pessimistic. I hope that I will be proved wrong, but I do not think I will be.

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