Chris Hayes (Werriwa, Australian Labor Party) Share this | Hansard source

One of the most difficult issues that will confront many of us or that we will ever have to deal with is family breakdown. I do not think any member of this place would say otherwise. Many members would no doubt deal on a regular basis, through emails or representations from various groups throughout the country, with issues associated with the Family Court and child support agencies. It is clear from my dealings with separated parents that their situation is not their preferred situation. Particularly, it is not the preferred situation for many of the children involved.

The provisions of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 will have a profound impact on many individuals within our community. They will have a profound and often long-lasting effect on those at the heart of the issues involved who, unfortunately, in many instances, will be children. When we consider issues surrounding family law it is too simplistic to say that there are 8,760 hours in a year and that that means that each parent has the right to have the child or children for 4,380 hours a year. Division of parental responsibility is not a mathematical calculation, nor should it be treated as such. It is overly simplistic and far from being in the best interests of the child for separating couples to sit down and divide the time spent caring for children in the same way they might divide the financial and physical assets of their relationship. Children are not a commodity, they are certainly not a consumer good and they should not be treated like toys or the like. Quite frankly, children must be special and must be treated as such in any relationship. Children should not be the leftover consideration when it comes to separation.

To treat a child in that manner flies in the face of responsible parenting and flies in the face of claims by either parent that they have the best interests of their child or children at heart. In making these comments, I do not shy away from the need for children to have both of their parents available to them despite the parents’ separation. Having both parents available to a child when the child needs it is a better reflection of shared parental responsibility. I support Labor’s continued opposition to the presumption of equal shared parenting time but support and will always support action that allows parents to share parental responsibility in a fair manner—that is, a fair manner that works for them and, most importantly, works for the children involved. It is important to recognise that the bill we have before us today will require a court to apply the presumption that it is in the best interests of the child for parents to have equal parenting responsibility. While I note that parental responsibility is a separate issue from residence or contact, and there is not the focus on time, I am concerned at the implications of changing the starting point for consideration of parental responsibility to the concept of equal shared responsibility.

The presumption will not apply if there are reasonable grounds to believe that one parent has engaged in child abuse or family violence. Under this presumption it is up to one parent to argue that parental responsibility should not be shared. I have to wonder: how is that in the best interests of the child? Using this presumption as a starting point increases the risk of litigation in the future and increases the potential for any ongoing tensions between separated parents to manifest themselves in the important decisions related to the upbringing of their child. I am also concerned about the content of section 60CC of this bill, which deals with what has become known as the ‘best interests of the child test’. The bill will introduce a hierarchy of factors, primarily additional considerations that seem to do little more than complicate matters further. I note that the hierarchy of consideration was also opposed by the courts and the Law Council. I also note that the government has included an additional section—that is, section 60CC(4)—which quite frankly has come directly from Labor and acts to remind parents that parenting is in effect a two-way street. Under this section, it is implicitly recognised that there are parental responsibilities for those who demand parental rights.

Possibly the biggest change under this bill is the introduction of compulsory family dispute resolution for separating parents before they are able to commence court litigation. The insertion of this requirement makes me wonder what the motivation of the government is when it comes to issues surrounding separations. I have to wonder whether this is the first step in a move to try and roll back divorce laws in Australia—to try and have the bureaucracy in the bedroom again, as it was once, before we introduced the no-fault divorce into our country.

Earlier this year, I read a newspaper report about how the Young Liberals wanted to reintroduce the concept of fault into divorce. I even recall, for instance, the member for Bass supporting the concept. The Weekend Australian on 21 January reported the member for Bass saying:

There are too many divorces in Australia and there’s a role for government to do more ...

I tend to agree that there are too many divorces in Australia, but I stop short of believing that the government has a role to play in trying to stop divorce by making it more difficult for parties to a relationship to separate. Harking back to some romantic notions of times past is not an adequate way of dealing with a contemporary issue of relationships. Late last year, it was reported that the number of divorces was down. Marriage is a significant commitment between two people, and it ought not to be entered into lightly, but, by the same token, divorce is something that people do not enter into lightly, and I wonder about the merits of introducing a law that requires couples to go through minimum periods of dispute resolution before they can proceed to the courts.

The obligations that are placed on parents under this plan are particularly bureaucratic. The most interesting requirement of this process is that the family relationship dispute practitioner is to determine whether or not, in the opinion of the practitioner, both parties have made a genuine effort to resolve a dispute. Of course, this is fine if the practitioner decides that you have made a genuine effort to resolve a dispute. That being the case, your application for divorce will then proceed to the courts. But there has been little or no effort to define what a ‘genuine’ attempt would comprise.

At the moment, we do not even know the level of qualification of the practitioners making this assessment, their accreditation or, quite frankly, anything associated with that, other than that they will be required to make a decision about whether you have participated and made a genuine attempt to resolve a dispute.

Once a practitioner has come to the conclusion that you have not made a genuine attempt to resolve a dispute, there does not seem to be any review possible under the proposed act. You simply do not get a second shot at it. Your papers are simply certified by the practitioner to the effect that you failed to make an adequate attempt to resolve the dispute.

I am also concerned about the ability for the government to actually provide these services and about the government’s control over the quality of these services. As I said, we do not know at this stage how the practitioners are to be appointed. We do not know their qualifications or their level of accreditation, other than that they are referred to in the proposed legislation.

As usual with this government, it is a case of introducing the laws now, getting them through parliament, using regulation to actually make them work and then ironing out any other details in due course. I might remind the chamber that we are still waiting for the detail of the government’s industrial relations laws to be announced. One wonders how long we are going to have to wait for the details of the operation of the compulsory dispute process that is outlined in this bill.

Members opposite can rest assured that I will be waiting to see the outcome of this process, especially when it comes to the family relationship centre which is going to be located in Campbelltown. I support Labor’s amendment, which would bring some certainty to this process. I support Labor’s amendment, which would guarantee free consulting so that, given the compulsory nature of the family dispute resolution process, it actually does meet the government’s promise that it will be made available and it will be free. I also strongly support the part of Labor’s amendment demanding that there be, before this process becomes compulsory, accreditation and quality standards for family relationship centres and the practitioners that work within them.

I also support the effort to change the certificate reflecting attendance or non-attendance, allowing the court to make the final judgment and draw any inference from the attendance record. As it is at the moment, all that needs to be certified is whether you have made an effort to resolve the dispute, not whether a party has decided to attend or not attend. Those are issues that, quite frankly, ought to be left to the court. There should not be a punitive arrangement around whether you attended the counselling session or not. It should be there to help people resolve issues. In terms of making any implication or extracting an implication from non-attendance, that should rightly be left with the judges at the time of entering into a judicial process if the relationship breaks down to that extent. I believe that this should continue to be the case. There should be the possibility of frank and full rulings made by the court which should not be compromised by subjective judgments by one practitioner whose qualifications and accreditation levels, as I said, at this stage are simply unknown.

The bill also proposes a change in the nature of parenting plans. Despite the fact that parenting plans are currently unenforceable, this bill moves to increase the role that they can play. The proposition that the court considers the most recent parenting plan when making a parenting order and that, by default, parenting orders can be varied by a subsequent parenting plan automatically raises their importance, despite the fact that there is no process for scrutiny or registration of parenting plans and no requirement to obtain legal advice. These plans will act to affect determined legal outcomes. Therefore, I would submit that it is important that there be a requirement or at least an availability for people to take external advice in relation to these issues. While the government has at least conceded that the plans should be signed and dated, it continues to refuse the recommendation that there should be a seven-day cooling-off period. The fact that the government refuses to incorporate this cooling-off period means that the risk remains that the plans could be developed and signed in private and under duress with no external advice.

As I noted earlier, a parenting plan can vary the terms of a parenting order and, given this new and increasing status, there is a real risk that without any quality control a forced parenting plan could override a decision of the court, potentially acting against the best interest of the child. It is for this reason that I support the move to include a seven-day cooling-off period to the plan being given full status.

I am pleased that a bill that sets out some necessary changes to our approach to family breakdown is before this House. Marriage and family breakdown are never easy issues to deal with. No matter what the content of any legislation being proposed, there will always be at least one group who feel they have not been adequately treated in the process. By supporting Labor’s reasonable amendment, I think we will find that most groups will at least consider that the child will be adequately covered under this process.

It is not a fair or reasonable proposition for the government to regulate the way in which children are raised, nor is it fair or reasonable to presume that a one-size-fits-all approach to dealing with the issues surrounding family breakdown can be developed. Families, like the individuals who comprise them, are reasonably unique in character. In modern society, families have it tough enough in dealing with day-to-day issues without needing to be told how they should operate. There is no doubt there is a need for changes to improve law surrounding areas of people’s lives, and I consider this bill in the main to be a fair approach to changing the law. It has been developed after considerable consultation with many interested parties.

To that extent, I support this bill because it encourages parents to take more responsibility for their children. I support the bill because it proposes mechanisms that provide the capacity to take these issues out of the adversarial environment of the courts and away from the legal system. I do not think that these mechanisms are completely perfect in their current form and that is why I support Labor’s amendment, but I welcome the fact that promoting non court based dispute resolution may better afford the opportunity for parents in dispute to reflect on the fact that the use of the court may be making their children the forgotten victims in these sad exercises.

Children should and always must be the priority when it comes to a family breakdown. There can be no excuse for anyone who is involved not to have the child at the front of their minds whenever they are considering this action. I believe the amendment Labor has proposed acts to strengthen what is in principle a sound set of improvements to the law. I encourage all members to support this amendment to improve this bill, to finetune it, to make sure cooperation is the central tenet of family law and to stop people feeling they are wasting money in courts and to start them investing their money in their children’s future.

See this speech in context