Annette Ellis (Canberra, Australian Labor Party) Share this | Hansard source

I rise today to speak on the Family Law Amendment (Shared Parental Responsibility) Bill 2005. This bill will improve the Family Law Act 1975 in several ways. Generally, it aims to encourage parents to take more responsibility for their children after relationship breakdown. It proposes alternatives to the legal system to try to resolve disagreements. It improves the legal process. And, most importantly, it makes children the priority following family breakdown.

I would like to reflect, if I can, for just a few moments. It may be 10 years for the Prime Minister this week, but it is also 10 years since I was elected to this place. In those 10 years, in my work in my electorate, I think I have probably seen almost every variation that one could possibly imagine in terms of family law and family breakdown and the situation that parents of both genders find themselves in when going through such a situation. I know that it would be very rare to find a member in the House who has not had that same experience. I think it is dangerous to generalise too much by saying that one side is worse than the other. I have seen men who have been left by their spouse and have taken years to get over the emotional trauma of that. I have seen women who have been the custodial parent, if I can use that term, who have faced the most unbelievable behaviour by their ex-partner in an attempt to do anything possible to avoid the payment of money. I have seen courts give access to both parents, with one of them just not interested in pursuing the access of their own volition. I think we have experienced everything you could imagine.

I am saying those words because it is important for me to have an opportunity to express how difficult in real terms it is for legislators to always get it right. I am pleased that this bill is here and that attempts are being made to alleviate and remove some of those difficulties. It is also fair to say that the bill probably will not be the perfect bill, because of the elements of human nature, human behaviour and human emotion we are dealing with. It is very important for me to have the opportunity to say that.

Nevertheless, we are here debating this bill. I am particularly pleased that the Attorney-General backed down from his original draft of the bill and adopted our call for family law to recognise parental obligations to children and not to focus simply on parental rights. It is absolutely essential that the needs of the children come first. The principle of the best interests of the child should always remain the paramount consideration in resolving all parenting disputes. Family law should not be a tug-of-war between mothers and fathers; it should be about what all parents can do for their kids.

Unfortunately, in my observation, Howard government policies in some cases are actually putting more and more pressure on families. These include some of the industrial relations reforms and some of the child-care shortages that are being faced. This can place additional pressure on families, maybe leading to further family breakdown and financial pressures. It can also make shared parenting virtually impossible for separated parents who need to work, particularly when we are talking about child care.

It is pretty disgraceful that the Howard government has refused to undertake to produce or release family impact statements for its new policies. However, I turn again more directly to the bill. I will discuss some of the reforms outlined in the bill and some amendments proposed by Labor which we believe very strongly will improve the bill.

Schedule 1 deals with the issue of shared parenting. The bill will require the court to apply a presumption that it is in the best interests of the child for parents to have equal shared parenting responsibility when making parenting orders. In this context, parental responsibility does not necessarily focus on contact or time with the child. It is defined as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’. It includes decision making on important issues like education, religion and health. The current law allows for equal shared parenting responsibility, but it is not the basic presumption, so this is a great improvement. The presumption will not apply if there are reasonable grounds to believe that one of the parents has engaged in child abuse or family violence.

Schedule 1 also requires the court to consider—and I repeat ‘consider’—equal time, that is, fifty-fifty with both parents, if it awards shared parental responsibility. It is important to note that there is no presumption of equal time with each parent, but the court must consider this option if it awards shared parental responsibility. Presumption of equal time has been rejected across party lines by the House of Representatives Standing Committee on Family and Community Affairs in its report Every picture tells a story.

I am pleased that the government has taken up Labor’s proposal that, when considering the best interests of the child, the court should consider the extent to which a parent has fulfilled or failed to fulfil his or her responsibilities as a parent. This includes whether a parent has taken or failed to take the opportunities to participate in making decisions about major long-term issues, to spend time with the child and to communicate with the child. The court must also consider the extent to which a parent facilitates the other parent taking up these opportunities and the extent to which a parent fulfils their obligations to maintain the child. Labor believes that it is essential that the government undertake thorough longitudinal research on family outcomes following the introduction of this legislation.

Schedule 1 of this bill also introduces compulsory family dispute resolution for separating parents before they can commence court litigation, with some exceptions. Whilst Labor support this schedule, we are proposing a range of amendments to make sure that separating parents can access a quality mediation service, including three hours of free consultation, which the government has talked about but which is not mentioned in the bill. It is also important that separating parents do not have to go through mediation if the court is satisfied that there are reasonable grounds to believe there has been or there is a risk of family violence or child abuse. Labor are concerned with the wording of this exception because of the government’s proposed new definition of ‘violence’. Schedule 1 of the bill amends the definition of ‘family violence’ to require the victim:

... reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

The word ‘reasonably’ has been inserted, and it will make it an objective definition rather than a subjective definition. Labor’s concern about this is that the court will now have to decide what is and is not conduct that would reasonably cause fear, which implies that some forms of threatening conduct are acceptable. The other concern is that it may not take into account the previous experiences of the victim, such as a history of physical abuse, which may make the person more inclined to feel fear in circumstances where another person might not. It will make it more difficult for victims of violence to prove that they are at risk. Labor has proposed several amendments to deal with these concerns, including deleting the word ‘reasonably’ from the current definition of family violence.

The bill also introduces financial penalties against people who knowingly make false allegations about violence. This is a very complicated issue, and Labor is moving an amendment which will delete this provision based on the concern that it might dissuade those who have genuine concerns about violence from raising them. Family violence can be notoriously difficult to prove and people might feel it is not worth the risk that they will not be able to substantiate their allegations and thus face a penalty. As I said, this is a very complicated area and there is no easy solution to these sorts of problems. But we have the responsibility to protect those who are vulnerable and at risk of being victims of violence.

I would like to go back briefly to the issue of mediation. Labor supports changes that will promote family dispute resolution outside the courtroom. This bill is part of a package of reforms that includes the establishment of a network of 65 family relationship centres or FRCs in the long run, with 15 FRCs in the initial program. If they are managed well and properly resourced, they will provide an invaluable addition to the family law system by being a shopfront and entry point for advice, referral, counselling and mediation services.

I would like to raise three points on these FRCs. Firstly, to oversee and develop the selection of sites and performance of these centres, the Attorney-General established a committee of eight coalition backbenchers. Six of those eight members, as I understand, hold marginal seats and five of them have received an FRC in their electorate. I cannot help but be critical of this process. There are numerous parliamentary committees with representation from all political parties in this place that could have very well overseen the establishment of FRCs in what I believe would have been a fair manner. This is a little bit of arrogance on behalf of the government and, more importantly, an ignorance of and lack of attention to the committee process in this place, which I am so strongly in favour of and support. The way that was handled might have been an underwriting of the value of those parliamentary committees. In relation to my own electorate, I know that there has been a commitment to have an FRC within the ACT. As yet, where that will be has not been determined to my knowledge. I am hopeful it will be in my electorate. I would like to think that, with a population of 320,000, the ACT might get more than one.

Schedule 1 also changes the nature and status of parenting plans, which are agreements in writing between parents concerning children. Currently, parenting plans are unenforceable. This bill substantially increases the role of parenting plans by requiring, for example, the court to consider the most recent parenting plan when making any parenting order. Labor have proposed several amendments to ensure that parenting plans are in the best interests of the child. For example, we propose to add in a seven-day cooling-off period before any parenting plan can be regarded by the court. This is due to the concern that a parenting plan could be made in private, under duress and without advice or support and still be given new status. The bill also expands the content of parenting plans and expands the obligations of lawyers, counsellors and mediators when advising people on parenting matters to ensure that they provide the best advice possible.

Schedule 2 of the bill empowers the court to impose penalties on parents who disobey parenting orders without a reasonable excuse. The major changes are the use of costs orders, the ability to order compensatory contact, compensation for expenses and giving parenting plans more weight.

Schedule 3 outlines special court procedures for litigation concerning children. The aim is to ensure that children’s matters are handled quickly and are as free of legal technicalities as possible. It hopes to provide less adversarial court processes and more active case management in children’s matters. It builds on the Family Court’s Children’s Cases Program, which is being trialled in the Parramatta registry in NSW. Labor supports this schedule in principle, but is concerned that it is being implemented before the results of the trial in NSW are known. Labor’s amendment proposes a commitment that the results of the NSW trial will be tabled in parliament and that the government will revisit these provisions if the trial finds a need for change.

Schedule 4 aims to make changes to dispute resolution processes. It aims to regulate family relationship practitioners, such as counsellors, and obliges lawyers and other workers in this area to provide certain information to people considering instituting proceedings under the act, such as the option of non-court based services. We are concerned that people who may need court based services may be discouraged to use them. Therefore, Labor is proposing that documents given to people contemplating Family Court proceedings include the following information: the right to have the matter resolved by a court; the availability of legal aid; and the benefits of court involvement in cases involving violence and entrenched conflict.

The bill contains many more reforms and there are other changes proposed in Labor’s amendments. I have highlighted merely some of the major changes. Generally, the bill will improve the family law system in this country. The issues are extremely complicated and, in some cases, it is impossible to please all the interested parties. When you consider that the key groups involved in this issue include fathers’ rights groups, women’s groups, lawyers and grandparents—the list is very long—you can see why this area can be so complicated. The most important thing is that we all aim to meet the best interests of the child when families are separating. All parents and family members must put their personal feelings aside—and we must encourage them to do that—and do what is best for their children and in the end for the family unit in whatever shape it make take into the future.

I will support the bill as it stands if necessary, but I very strongly urge members on the other side to seriously and honestly consider Labor’s amendments, which, I believe, if adopted, would improve the outcomes for children following family breakdown. Those amendments are put forward in a very honest way to help improve a very important piece of legislation before this House. I would like to think that we could consider them in a non-contentious way and give them careful thought. At the end of the day, who cares whose bill it is, as long as it offers protections to all participants.

I conclude by repeating a couple of the comments I made at the outset. There are numerous—in fact, too many to list—variations on family breakdown and other family considerations. There are so many human elements to this whole debate. At the end of the day what I want as a member of this House is to make a contribution to this debate which is as beneficial as possible for everybody. I hope that is the outcome we will see.

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