Lindsay Tanner (Melbourne, Australian Labor Party, Shadow Minister for Finance) Share this | Hansard source

Labor support the Family Law Amendment (Shared Parental Responsibility) Bill 2005, although we do have a number of criticisms and concerns, some of which I will refer to in my contribution. On a broader front, I think it is worth noting that for a very long time the parliament and the various parties in the parliament have neglected these extremely important areas of child support and child access, family law and all of the associated issues. It has been a very positive thing, over the past couple of years, to see a substantial number of parliamentarians from both the major parties make major contributions in public debate on these issues. I think the report Every picture tells a story is probably the best and most important report by a parliamentary committee in the time that I have been in the parliament.

Although the opposition does not entirely agree with the way the government has gone about pursuing its reform agenda in this area, broadly I think it is fair to say that much of what the government is proposing to do does have the opposition’s support, and there is no question that things are heading in the right direction generally. There are a variety of areas where we do have differences of opinion on particular matters, but nonetheless it is long overdue that the parliament deals with the very serious issues that are attached to the whole area of family law, child support and associated themes.

I can address these questions with some degree of personal experience, because for the past six years or so I have been a non-custodial parent with two children. I am paying child support for those two children. Fortunately, I have been one of those people who have had one of the less traumatic experiences with the system, because the arrangements that have prevailed with respect to my responsibilities have all been by consent, by agreement. There has been minimal conflict. But nonetheless, even at that level, these issues are very difficult. I can only imagine what it must be like for people who are in much more extreme circumstances, be they custodial parents or non-custodial parents. Having experienced what it is like for somebody in that situation in a relatively cordial and harmonious set of circumstances, I can only imagine how difficult it must be for the very substantial number of people for whom the circumstances are much less cordial.

I want to comment on a number of aspects of the legislation in turn. First, can I applaud the government for introducing the notion of shared parental responsibility. One of the things I found very peculiar in my early experiences with the child support system, the issues of access and all of the arrangements in the legal process was that the state effectively seemed to be saying to me, ‘You have a right to access your children and you have an obligation to pay a certain sum of money for their upbringing,’ but it did not send any messages to me that I had a responsibility to be in their lives.

The implicit messages that the system, as it has evolved, seemed to be sending to me and to all other people in my situation were that as long as I stumped up with the money the state did not really care if I never saw my kids again. I think this is a complete reversal of the way the system should operate, because to me the question of access to my children is not a matter of right, it is a matter of responsibility. I regard myself as having a responsibility to stay in my children’s lives, to provide not just money for their upkeep but emotional nurturing, advice, guidance and all of the things that a good father should provide. The mere fact that they no longer live under the same roof as me and are in a separate household is no reason why I should cease to be a good father to them. The system as it has evolved really does not send any serious signal of that kind.

One of the horrifying statistics that I uncovered a couple of years ago when doing a bit more research into this area is that there are roughly 250,000 children in Australia who live apart from one of their parents—overwhelmingly the father—and who either never see or only very intermittently see that parent. In some cases that is probably a good thing, but in most cases it is not. In most cases the fact that the state has no inbuilt signals in the system putting any kind of pressure or motivation on the part of the non-custodial parent to contribute emotionally to their children’s upbringing has been a major flaw in the system. The fact that this legislation seeks to introduce a notion of shared parental responsibility is a very significant step forward. It is not an easy thing for legislation of any kind to make good fathers out of bad fathers. Obviously there will be some cases where it is good for everybody for a father to have nothing to do with his children, but that will generally be in a relatively small minority of cases. Anything we can do to put greater pressure on non-custodial parents—mostly fathers—to put more effort into and make a greater contribution to their children’s lives is a good thing.

The second theme associated with this that I think is worthy of comment is the presumption of shared contribution or shared time. I think this is a positive step, provided that it is applied sensitively and intelligently. There is, of course, a codicil to this, and that is that in many circumstances shared time, particularly equally shared time, will simply be impractical. There is quite a bit of evidence to suggest that it is not a desirable thing for children to live week on week off with different parents. That is a bit destabilising for them, particularly in very sensitive times of their lives. Nonetheless, something that imposes the presumption that there will be some time spent with each parent I think is a good thing. The advent of parenting plans is a positive development. Labor has been critical of some of the aspects of the framework that have been put forward by the government with regard to parenting plans but nonetheless the broad concept, as recommended by the Every picture tells a story report, is a very good development and certainly has my support.

The family relationship centres as a general proposition are a good innovation. Time will tell how effectively they work. We do have some reservations about the quality of the advice that will be provided, about the requirements with respect to mediation and various other matters and about whether they will be equipped to deal sensitively and appropriately with things like threats of violence. There are inevitably some very difficult situations in this area. Time will tell how effective they are. Nonetheless there is cause for supporting the family relationship centres. I think that is a significant step forward. Hopefully they will work as intended and make a significant contribution to reducing conflict and litigation and to improving outcomes for children.

A couple of things that are worrying about the legislation, which Labor has referred to in its second reading amendment and which the shadow Attorney-General has referred to, are the provisions with respect to violence. There are a couple in particular that I find disturbing. A change of definition of apprehended violence to make it a more objectively based test may at one level appear logical because, by definition, we do not wish to see decisions being made based on a fear of violence that is plainly, obviously and completely unfounded. But I do not believe that has been happening.

A division having been called in the House of Representatives—

Before the suspension, I was pointing out that there are a couple of aspects of the legislation which Labor does oppose and has substantial concerns about, particularly relating to the issue of violence. We are concerned about the change of the definition to insert a degree of an objective test into the question of apprehended violence, which we believe will potentially disadvantage a number of women who genuinely fear violence and have good cause to fear it—albeit a cause that is very difficult to prove.

We are also concerned about the insertion of a provision imposing mandatory cost orders for those who are found to have made accusations of violence that are without foundation. This is for a couple of reasons. Firstly, little evidence has been adduced to demonstrate that this is a major problem. We do hear anecdotal stories of individuals allegedly making false accusations of violence or using such accusations as leverage or bargaining ploys in family disputes. But little evidence has been put forward to suggest that there is a major problem here that requires a significant change in the law to deal with.

In my view, it would have been more appropriate to provide discretion to the presiding judge to make an order with respect to costs in these circumstances, based on a genuine finding that a false and vexatious claim of violence had actually been made. And it is conceivable that the proposed change to the law could even have a contradictory effect, in that it may become something of a disincentive for a court to find that an accusation of violence is without foundation if the court knows that, in so doing, it will be automatically imposing a heavy cost burden on the person making that claim. In our view it would have been infinitely preferable for discretion to have been provided to the court to deal with this matter. To make it mandatory takes it one step too far and risks creating genuine injustice.

The final point I wish to deal with relates to the question of enforcement. As probably all members have, I have had plenty of experience dealing with individuals in the family law and child support systems, as well as my own experiences—which fortunately have not involved any serious disputes. I have had plenty of experience dealing with constituents, male and female—people concerned about problems with access to children and people concerned about problems with receiving legitimate child support payments.

I have even dealt with a constituent, a non-custodial parent, who claimed that his ex-wife was earning over $100,000 a year, because she was in a highly paid professional job, but had disguised these earnings and reported only $10,000 a year in order to ensure that she qualified for child support. Of course, I have no means of knowing the truth of this, but it is an indication of the enormous variety of disputes that emerge in the system.

In my experience, a very high proportion of these problems lead back to a core weakness in the system: inadequate enforcement mechanisms. For most people who feel aggrieved—who feel that an access order or an access agreement has not been complied with or that child support obligations are not being complied with—the ability to obtain justice and to see justice enforced is very costly, very time-consuming, very difficult and, for some, in effect, impossible. In my view, this is the biggest weakness with the system and it is a very difficult weakness to deal with because you are dealing with issues that are difficult to enforce.

I was a supporter of the family tribunal proposal that emerged from the Every picture tells a story report, because I felt that it raised some prospect of dealing with this problem—that, if it were possible to get a different kind of legal structure that was less formal, less costly, more speedy and that could deal with, at the very least, the lower level disputes that are widespread in this area, that would be a big step forward. People often find themselves in difficult situations, where access to children or to child support payments are being used as weapons in ongoing disputes but where there is no major dispute—for instance, about violence or child abuse—involved. In these cases, the idea of having access to a much cheaper, simpler and quicker means of dispute resolution enforcement has, I think, a lot going for it.

The government has thus far chosen not to go down this route. It is fair to say that there are different views within our ranks on this issue and I have no doubt that there are different views within the government’s ranks on this issue. I note that it has announced that, in the forthcoming child support legislation, there will be mechanisms for appeal to the social security appeals tribunal, which is an interesting step that may assist in this regard. I do not know enough about the detail as yet to be able to understand to what extent this will provide some kind of solution to the problem of enforcement, but I would urge the government, in all good faith, to continue to put as much emphasis as possible on tackling that problem because, in my experience, it is at the heart of many of the most distressing cases that we all deal with. People’s ability to get a fair dinkum umpire’s decision and to ensure that it sticks—and not have to pay $50,000 or $100,000 to get it—is very limited. To me that is at the heart of the problem.

People sometimes—perhaps with some justification—complain about Family Court decisions and how they came about. But, for every one of those, I would venture to suggest that there are a dozen where the real complaint is the inability to get a resolution or arbitration of a dispute which is straightforward, simple and enforceable. In continuing the process of developing better ways of doing these things, one crucial focus has to be on legal processes and mechanisms for parties to pursue and resolve disputes and for outcomes to be enforced. If we can improve that, I think we will make the lives of a lot of people significantly better and we will reduce the extent to which conflict, cost and emotional trauma dominate the system in family law and child support.

In conclusion, I reiterate that I think the process that has occurred with both government and opposition on these issues over the past couple of years has been commendable. We do not agree with everything the government is putting forward. There are inevitably a variety of views within both major parties on these issues, because they are very vexed and very difficult issues and inevitably people carry with them their own experiences, their own biases and their own emphases. This is one of the most difficult and traumatic areas of law making, which has long been neglected by both sides, frankly—with one or two honourable exceptions such as the member for Chifley. I think it is very good that, finally, we are addressing this. The steps that are being taken are positive. Notwithstanding some of the criticisms and differences that I and other Labor members have on certain issues, I think that, overall, we are making serious progress, and I hope that we can continue to make further progress.

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