Wilson Tuckey (O'Connor, Liberal Party) Share this | Hansard source

The history behind the Family Law Amendment (Shared Parental Responsibility) Bill 2005 goes back to the Murphy amendments to family law, a very dramatic affair which introduced an argument that the family courts should take into account all welfare payments before requiring any payment from the person then known as the non-custodial parent. As the cost of that escalated, we had the Howe legislation, which created the monster that is now known as the Child Support Agency and the idea of a set percentage of the income of non-custodial parents, as they were then known, for the support of children. Over time, that has been demonstrated to be impractical and grossly unfair.

These matters arose following the submission of a report by the House of Representatives Standing Committee on Family and Community Affairs. The committee was bipartisan and it set down a strong series of recommendations which were then passed on to government. There was a process thereafter which resulted in draft legislation—an exposure draft—being considered by the House of Representatives Standing Committee on Legal and Constitutional Affairs. Because the committee is a standing committee of the parliament, it is one on which both sides were again represented. Included in the membership were the member for Lowe, the member for Chifley, the member for Denison and, I believe, the member for Gellibrand. After considering the original report and the draft legislation, it put forward a report with 56 recommendations, 51 of which were accepted by the government. The committee reported in August 2005 and the government’s response was given in December 2005. It can hardly be said that the response was slow or delayed.

There was only one dissenting report, by the member for Gellibrand. As seems to be occurring in this place, a person, possibly with shadow ministerial responsibility, is jumping up and driving policy for the Labor Party at a time when other members of that party either hold an alternative point of view or have participated in a process to come to conclusions to enable this parliament collectively to resolve some quite tragic circumstances, including suicide, that have resulted from legislation well past its use-by date. Why is it that today, after those extensive processes over some years, the member for Gellibrand—on behalf of the Labor Party, as she claims, and in defiance of the recommendation supported by the member for Lowe, the member for Chifley and the member for Denison—now comes to the parliament and wants to rewrite the legislation in a significant fashion?

What are the recommendations of the member for Gellibrand—the amendments she wants this parliament to pass? She wants to rewrite the provisions relating to family violence. She wants to virtually re-create the situation where family violence could block out access to the non-custodial parent—a thing that has been done time and time again. The legislation is quite specific. The government reforms protect children from the risk of violence or abuse by making them a primary factor to be considered in child custody cases. We do not subscribe to the view of the provision being abused—as occurs, unfortunately, in family breakdown, where a particular parent will make unsubstantiated accusations of that nature—as a means to frighten the courts and others from that minor risk that might occur in those cases of any violence whatsoever. It is a tough issue; it has been addressed. At this stage of the game, after all the consideration that has been given to the clause, it is inappropriate that it should be changed by amendment in this House and in the climate of this House.

The member for Gellibrand wants to remove the prioritisation of a child’s right to know both parents and a child’s protection from family violence—a provision approved by the committee. She wants to change that notwithstanding that it has been through these previous processes. The member for Gellibrand wants to reject the change from joint shared parental responsibility—and she just repeated that—to equally shared parental responsibility. She wants to change the word ‘equal’.

That is exactly what these amendments are all about—equality between two parents who have decided to part ways, but in the interests of the children. As we all know, if the kids could take a vote, they would frequently prefer their parents to stay together. At that point in time that issue is beyond them. But in relation to the right of the parents to share in equal terms, the responsibility for the children should be one of the highest of the challenges.

The member for Gellibrand wants to remove the provision allowing cost orders against persons who make false accusations of family violence. How silly is that? Of course people should be discouraged from making false accusations and of course there must be some sort of evidence available if family violence is in fact a matter for consideration and, as we say, a primary factor in the removal of the opportunity for the other parent to have equal access to the children of that marriage.

The member for Gellibrand wants to remove the requirement for parents, before going to court, to first make a genuine effort to resolve their issues in mediation. She wants some guarantee that the funding will be there forever. No parliament can commit a future parliament. There is plenty of evidence of such arrangements being broken when those in opposition move to being in government. Nobody can bind a future parliament, so why ask for silly measures like that to be included to make a political point?

Above all, when can the Labor Party, the opposition, get its act together? I repeat that there has been a very significant process in arriving at this legislation today. The Standing Committee on Legal and Constitutional Affairs is a pretty logical place to send some draft exposure legislation. It is made up of people who have committed themselves. They typically have legal backgrounds. The chairman, Mr Slipper, whose electorate is Fisher, has a legal background—just like, I would imagine, most of the others. They went through it bit by bit. For all the hoo-ha we get about debating legislation in this place, the 20 minutes made available to us is pretty cursory. This is not the place where you get all the answers, unfortunately. That is why we have committees. That is why they have done their work. As I said, the committee put forward 56 recommendations, of which 51 have been accepted by the government and included in this legislation.

All of a sudden, after all of that, because the member for Gellibrand feels that she has some other constituency to which she wishes to respond—and please note that I did not say ‘respond to’—the fact of life is that she wants to rewrite the bill. I am highly critical of that. Her colleagues—whom she has defied, considering the hard work that they have put in—should have some complaint back in the caucus. It is not good enough and this is not the sort of legislation that should require a political response.

I might give the member for Gellibrand a bit of advice in her absence. She has not hung around for my advice. I have only been married for 47 years; I am no judge of these matters! By the way, what a statistical family mine is: of the four kids in my family, two are divorced and two are still married. I guess we have seen both sides of the argument in every respect. But you have to be very careful politically when you start to decide that you will support one sex against the other.

As I advised our party room today, my office is full of a lot of complaints from females. They are typically the mothers of non-custodial parents or the second wives of non-custodial parents. If you just want to think that this is a man-woman argument, you should be very careful. The fact of life is that this concerns legislation of years ago, put in by the Labor Party in response to previous legislation generated by the Labor Party. The reality is that the legislation was a failure. It has created a very arrogant organisation called the Child Support Agency and policies that will be addressed in this legislation—for instance, telling farmers in my electorate who have had three years of drought that the fact that they have not earned any money is not a matter for consideration. ‘You have the potential to make $100,000 a year on your farm, Mr Smith. That is what we will strike your contribution upon.’

Then there is the situation where there was a family with two houses on a farm and the wife of the person involved decided to pack up and go to town away from the extended family—the grandparents and others. I found it just unbelievable. The fellow apparently went to try and reconcile things and the next thing the police were out there taking his rifle away from the homestead. Knowing the family involved, I do not think there was violence of any description.

There is case after case where the existing legislation has failed people, failed children and been grossly unfair. As I said, I understand that suicides were virtually a weekly occurrence—and murder, and that is the most heartbreaking: when children’s lives were taken because of the frustration of parents wishing to take it out on the other party in the most horrible way.

Today we are assessing how we might fix that and put some justice into it so that there is proper access and people feel confident from the beginning. Why all of a sudden during the debate should the member for Gellibrand start to sling off about government administrative incompetence and attack the Hillsong Church? Why chuck those nasty little bits in on a matter of such great importance? After the due bipartisan processes that have occurred in this matter, today she asks for the legislation to be rewritten? It is wrong and it is silly. It is one person trying to pick up a constituency or give themselves some place in history. It should have been today that people in this parliament joined hands on this issue.

If I can detour just slightly for a moment, we should also be doing so on taxation. You do not need to be Albert Einstein to know what is wrong with the tax system and to identify the best responses. We should be able to have the capacity on both sides of this House to fix it. It should not be an issue of saying, ‘Can I surf to victory at the next election on some aspect of it?’

These are the big issues—families, taxation and the economy. They should not be—as they are—a situation where someone says, ‘I can gain political advantage if I go out and try to change this, if I go to some particular group and say, “I did my best for you.”’ We have been through that process. People from both sides of this parliament and the people I have quoted are amongst the most dedicated on this issue—the members for Denison, Chifley and Lowe. Why not take their advice and that of the coalition members and get on with the job?

It is in my mind important that this legislation passes without these amendments. But there are still government amendments to be considered, and I naturally support them. Let me in brief say this: this legislative package will cost the taxpayer some $397 million and probably more. It will be money well spent to achieve the reforms that we want. Schedule 1 recognises the need for a cooperative approach to parenting. Yes, if you want to go your individual ways for whatever reason, think about the kids. Cooperate, get together and do things. Under schedule 1:

... children have a right to have a meaningful relationship and know both their parents and ... parents continue to share responsibility for their children after they separate.

Might I say it is shared equally. It is no longer the case that we separate the sexes in employment, income or responsibility. I can point within my extended family to a housefather who has undertaken that role throughout the married life of that family with three children. In those circumstances, why is it that in past legislation and past legal practice we have differentiated? On schedule 2:

Schedule 2 contains a range of amendments to strengthen the existing enforcement regime in the Act. Breaches of court orders are a major source of conflict and distress to all parties ...

Of course people who are told by the courts, for instance, to give access to the other partner should obey that instruction and of course they should be penalised if they fail to do so. In fact, the division—that is, schedule 2—will provide:

... clearer and more accessible provisions that will make the whole Division easier to understand.

That is a challenge for us as legislators every time. On schedule 3:

The amendments in Schedule 3 provide for a less adversarial approach to be adopted in all child-related proceedings under the Act.

Who could criticise that? On schedule 4:

Schedule 4 contains a range of amendments to the counselling and dispute resolution provisions in the Act to ensure the legislation supports the Government’s policy of ensuring that separating and divorcing parents have access to quality family counselling and dispute resolution services so that they can attempt to resolve their disputes outside of the court.

The amendment proposed by the member for Gellibrand removes the responsibility to attend mediation in a genuine fashion. In other words, she wants a situation where people on the advice of their legal counsel can go to mediation and say: ‘I’m not talking. I refuse to speak. I refuse to cooperate.’ What a ridiculous situation. On schedule 6:

This Division deals with the relationship between orders made under the Act that provide for a child to spend time with a person, and family violence orders made under a law of a State or Territory to protect a person from family violence.

But it gives directions to state and territory magistrates as to how they might deal with those matters. Finally, on schedule 7:

Schedule 7 repeals section 45A of the Act to enable the Federal Magistrates Court to also exercise jurisdiction for those property matters where the value of the property exceeds $700,000.

It starts to become commercial and not fought out. It starts to be about property rights rather than a case of, ‘I’ll get you.’ It should be reasonable and it should be properly discovered. I reject the amendment proposed by the opposition. I doubt any reason for its being here, considering the processes that have preceded this legislation. I trust the parliament will do its job and come up with this bill as it has been agreed.

See this speech in context