John Murphy (Lowe, Australian Labor Party, Parliamentary Secretary to the Leader of the Opposition) Share this | Hansard source

I rise this afternoon to speak on this most important bill, the Family Law Amendment (Shared Parental Responsibility) Bill 2005. My electorate office has been inundated with emails and other letters from parents suffering from the effects of divorce and with the dilemma of the current legal regime founded in the Family Court of Australia and the Child Support Agency. There is, in my view, true despair felt by those parents who are bitterly unhappy about the existing so-called ‘family’ and ‘child support’ laws and the way in which these laws are administered.

I could easily spend my 20 minutes reading from texts of some of the heart-wrenching letters that I have received from my constituents. During the debate on the Legal and Constitutional Affairs Standing Committee report on 14 September 2005, I read a letter to the Main Committee. This letter put the proposition succinctly that ‘equal shared parental responsibility’ does not mean ‘equal time’. Further, the submission stated:

It seems absolutely unfair to say to people that they have the burden of equal responsibility but not share in equal rights.

I can only agree with the views of my constituents who, over the last two weeks in particular, have come to me in the hope that I will speak against those advocates who seek to deny the access of parents to their children—particularly fathers, who statistically are hardest done by in family law proceedings. This is true in property orders as well as in the immediate issue of children’s custody.

In statistical terms, the mother of a child has always been favoured by the Family Court of Australia. I refer to the Family Court of Australia’s residence and contact orders under the category ‘Any application for children by outcome’ for the period 1994-95 to 2000-01. In percentage terms, the Family Court’s statistics for the period 2000-01 show that over 70 per cent of all residence order outcomes favour the mother. Just under 20 per cent of residence orders favour the father. In just 2.5 per cent of cases do mothers and fathers gain joint residence, with a further 4.2 per cent obtaining split residence.

I will not dwell upon the closely related issue of property orders, except to say that the percentages are frighteningly similar. The woman and mother can expect about 70 per cent of the matrimonial assets—that is, what is left after the lawyers get their cut—with the fathers getting roughly 25 to 30 per cent. In light of these facts and statistics, I believe the bias exhibited by the Family Court of Australia in its judgments is both perceived and real. Natural fathers are being ripped from their children. Fathers are effectively being rendered either financially destitute or bankrupt. Fathers from divorced relationships are driven to the worst excesses of despair and destitution, thanks to the persistent and deliberate policies latent within the Family Court of Australia and the Family Court of Western Australia.

I am indebted to a constituent, not of my electorate, who forwarded me a copy of the Daily Telegraph poll of 26 March 2004, which asked the question: which federal issue do you think needs the most attention in 2004? Mr Deputy Speaker, what do you think the answer was? Was it national security? Was it unemployment or the economy? Astonishingly, overwhelmingly the winner, at 60 per cent of those polled, was child custody. In my view, the government has not only failed miserably in this policy area but, with this bill, will ensure only the continued misery of parents, particularly fathers of children who are being systematically discriminated against by the Family Court of Australia and the Child Support Agency. Fathers are being made non-custodial parents while simultaneously having their assets ripped from their hands, and they are left legally powerless and penniless.

This shared parental responsibility bill is supposed to deal with the obvious biases against parents, particularly fathers, who are being dealt the most savage of blows by the legal system. I go so far as to say that, if left unchecked, this prevailing legal system will, with its apparent political agenda, destroy families. That appears to be the only real agenda of the policy makers—to destroy families and the institution of marriage. There is no policy rationale, in my view, that supports the view that the so-called ‘Family Court of Australia’ achieves anything other than the destruction of the family unit and the separation of children from their parents—most particularly, children from their fathers.

Clause 60B of the bill describes the objects of the part dealing with the principles of shared parental responsibility. Clause 60CA, under subdivision BA, prescribes, predictably, that ‘the best interests of the child’ shall be ‘paramount consideration’, reflecting Australia’s obligations as a signatory to the United Nations Declaration on the Rights of the Child. However, as is so commonly done with United Nations instruments, the signatory nation interprets its obligations in light of the prevailing morality of that culture. In Australia, this government perseveres with its culture of abnegation of its responsibility of subsidiarity. Simply, this government views itself as being above any political responsibilities to the people. The government needs to understand that it must serve the people and not expect the people to serve the government. We see that in clause 60CC the Family Court is directed statutorily as to how it is to determine what is in ‘the best interests of the child’. This provision contains—and forgive the pun, as none is intended—‘motherhood’ statements going to the primary and additional considerations of what is in the best interests of the child.

What is of critical note here is that the state—that is, the government—usurps for itself the statutory role of the parent for the purposes of determining what is in the best interests of the child. For example, provisions within the bill such as clause 68LA(5)(b) require the independent lawyer for the child to inform the court of the child’s views. Equally, the role of the children’s psychologists in speaking as if for the child creates a legal environment where the ‘best interests of the child’ is nothing more than a smokescreen for what is, in reality, the state’s determination based on its own laws of what it says is in the best interests of the child.

In reality, the ‘best interests of the child’ is a misnomer. What this really means in the culture of the Family Court of Australia is the state’s usurping of the natural rights of the parents in their procreative right to equal access to the child. It is the state that usurps the natural rights of the parents in having equal access to the child. It would be a scholastic task to review each of the orders of the Family Court of Australia. In 2000 to 2001 alone, the Family Court of Australia notes that there were a total 13,194 applications for residency orders.

Another favourite mantra is that ‘each case is determined on its individual merits’. One would be naive in the extreme to believe that each of these 13,194 applications for residency orders was determined on its merits to a point where there is a uniform consistency of some 70 per cent of all residency applications going in favour of the mother. One would be even more naive to believe that, given the residency orders have continued consistently to favour the mother each and every year from 1994 to the present time. Every year the figures vary from as high as nearly 74 per cent in favour of the mother in 1994-95 to the most current statistics available of just under 70 per cent for the year ended 2001.

I regret that I do not have more up-to-date figures, but what is telling is that the figures on residency orders remain statistically high in favour of the mother; there is no argument about that. The father is by far the loser. This wide disparity of residency orders cannot simply be due to, as we are led to believe, the incidence of violence by the father or acts of sexual or other impropriety. Even factoring in all those incidents, the statistics do not answer the question: why is there such a bias in favour of mothers for residency orders?

To answer this question, we need to look at the fundamental policy intent of this bill and the general provisions of the Family Law Act. I stated earlier that what this government would seek to make into legislation is far from being in the best interests of the child. In reality, the law, as put before this House today, is a smokescreen. In reality, this bill seeks to give shared parental responsibilities but not equal access to the children. Moreover, and critically, this bill seeks to retain the prevailing system embedded in those provisions I referred to earlier, where the state continues to usurp the natural rights of the parent.

It is the state that defines what the rights of the child are. This statutory definition does not accord with the natural law, as the law seeks to deny the child the right of equal access to their parents. I quote from Professor Don Boland of the Centre for Thomistic Studies in his 2000 text titled For the sake of children, in which he states:

The right of the child to have life from the love of its parents has been replaced by the right of the parents to have the child, if they choose to.

This statement is made in the procreative context. The Family Court’s jurisdiction, as stated in this bill and in the Family Law Act, is nothing more than a projection of this government, the state, usurping for itself the very power to decide the fate of the child at the expense of the parents.

Even more disturbingly, and again I cite Boland, what is lost in this government’s equation is any recognition of the natural procreative rights of the father and mother. It is worth citing the following passage from Boland’s text to highlight where this bill is leading Australian society today:

What does this mean for the child or issue of the union? Well, it is mostly not good news. There are some incidental side-effects that from some particular child’s point of view are good, such as the disappearance of the social and legal status of illegitimacy. Generally, however, the child loses not only its legitimacy within the family as a social and legal institution but also its very right to begin to be, let alone to be born, as a natural outcome of the life-long committed personal love of man and woman. It is simply not in the equation. “We will to make love”, but “we do not necessarily will to make what love makes”. The natural connection between sexual intercourse and human generation has been broken. The connection when now made will be purely voluntary”.

This quote, it is acknowledged, is within the issue of the law’s recognition of the sacred connection between love, marriage and procreation. It is in this context that the Family Law Act not only divorces two married people by legal process but seeks to divorce the natural rights and duties of the parents in having the immediate rights to rear and educate their children. It is in this context that the Family Law Act and this bill seek to continue to undermine, in my view, the nature of marriage and the indissoluble natural rights and duties of the parents, critically fathers, over their children. It is the role of both parents to have access to and residency with their children that is of paramount importance to the child, not what the state would make as a construct of that interest of the child.

Based on the Family Court’s own statistics, the ‘best interests of the child’ means armies of single mums living out there with children who have little or no access to their natural fathers. The ‘best interests of the child’ means the child being raised without their father at all in a high number of cases. I ask: how does this reality accord with the natural law? Again I remind the parliament that a law that does not accord with the natural law is no law at all. The current so-called Family Court regime—what should be properly called the ‘divorce court’—has decimated families, not solved problems in the best interests of the child. The real policy impact is to produce armies of single mums raising children who are separated physically, intellectually and emotionally from their fathers—often worsening, not bettering, the views of those children of their natural fathers.

Children are now pawns, sadly—weapons of the state to ensure that the parents’ assets and lives are torn apart for the benefit of those ideologists who would have us believe that this is a better system than the fault divorce system it replaced. Divorce is now a piece of paper. ‘Children’s rights’ and the ‘best interests of the child’ are nothing more than mantras to justify the persistent destruction of the family unit and in particular the interests of fathers, who are decimated by a system that is statistically and demonstrably biased to a very high degree, as I said earlier.

It has therefore come to the point where I must urge both houses of parliament to restore power to the hands of both parents in the rearing of a child. It is imperative, in my view, that the laws reflect the natural law, giving full recognition to the procreative and educational immediate rights of the parent over the state. I have said in earlier speeches in this House, as far back as 1999, that the state’s right to determine what is in the best interests of the child should be reserved only for situations of wards of state, where the parent or parents are either dead or intellectually incapable of fulfilling their obligations. That is my view. To have the court’s vision statutorily set by so-called children’s lawyers and shrinks is to deny the most basic rights of both parents in the natural and procreative functions of rearing, educating and nurturing their own issue.

I believe that this government violates the most basic interests and rights of all parents throughout Australia. Further, this law only serves to destroy civic society by attacking both family and marriage. This law seeks to deny the most basic natural rights of the parents, in particular fathers, and in doing so usurp for itself the power of a parent. As any person who has had the misfortune of having to go through the Family Court of Australia for a contravention order will tell you, the state makes a poor parent. The state could not care less. The state is impotent to prevent one parent contravening access or residency orders.

I believe there is little justice in our present system. Parents are driven to despair because the state, on the one hand, usurps for itself the immediate rights as a parent yet, on the other hand, does not have the immediate capacity to deal with the ever growing and embarrassing statistics on applications for contravention orders. Put another way, a piece of paper known as a contravention order means absolutely nothing on the ground.

The immediate issue and immediate rights lie with both parents having equal access to the children in all but the most dire circumstances. Sadly, this bill does not achieve that, for the bill not only preserves but enhances the powers of the state in determining access and residency. Unfortunately, based on the statistical history of the Family Court of Australia, it is clear that the bias against fathers and in favour of mothers will continue indefinitely. Therefore, this bill, in my view, is impotent. Until this government wakes up to the reality that its family law is in fundamental contradiction to the natural rights of both parents to rear and educate their children as a fundamental procreative right and restores such power to both parents, this government is doing no more than wasting our time in this House today with meaningless bills such as this, which can only serve to worsen the situation for those long-suffering parents, particularly fathers, who have had to suffer the horror and shame that is our current Family ‘Divorce’ Court of Australia.

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