Peter Andren (Calare, Independent) Share this | Hansard source

Somewhat beyond the pale, and let us understand where we really are when we are behind the bar. There is no doubt family law and child support matters are probably the most draining and emotional issues to confront MPs. I well remember being shocked by the number and intensity of representations made to me when I first became member for Calare 10 years ago today. Thankfully, there have been some significant reforms with respect to child support matters, at least in the way complaints are handled by Centrelink, rather than the totally cold processes of the Taxation Office.

While I agree there still needs to be significant reforms in the child support domain, I am concerned at observations today from a former Chief Justice of the Family Court, Alistair Nicholson, who described the changes announced this week as ‘retrograde’. I agree that the reduction by 24 per cent in child support for an extra night spent with the non-resident parents seems very excessive, but I do believe there needs to be an adjustment of child support payments. The formula in the suggested changes includes differentiating between the below-12 years and over-12-years costs of raising a child, and that would seem to be a pretty sensible beginning.

Today we are dealing with the other aspect of family breakdown—that is, family law reform. The intent of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 is very important. It is an attempt to help parents agree on the future of their children and to lessen the possibility of angst and frustration—indeed, violence—overwhelming the recognition of what are the very best interests of the child. While it is reassuring that 95 per cent of family law matters are resolved without court orders, many people would benefit from the guidance of professional counsellors to deal with interpersonal relationship issues or from dispute resolution, arbitration or reconciliation processes to try to work out a parenting plan that can be agreed upon.

Most of these services would presumably be provided by one of the 65 new family relationship centres. However, the nearest planned centre to the central west is Penrith, and I am concerned for those potential clients in my own electorate—and elsewhere in country New South Wales and elsewhere in Australia—who have neither the means nor the time to travel to, in this case, Western Sydney. Outreach services for rural areas would seem to be an absolute priority if these centres are to work. I note the CEO of the Family Court and delegated staff also have functions as family consultants, counsellors or dispute resolution practitioners, but I am also aware how stretched the court resources already are without these added duties.

Informing people about the new services available to them will, hopefully, circumvent the need for Family Court procedures from the outset for a number of people, should they wish to use these services before initiating divorce proceedings. Unfortunately, it may take the court to order parents to attend a dispute resolution service, counselling or any other of the services available. The court may specify the particular issue that must be addressed by these services and may make an order that the parties encourage others affected—such as grandparents or new partners—to participate in these services, with the intent that a parenting plan is negotiated and nutted out between all parties.

That is a wonderful objective but, given the practicalities of that and the sorts of divisions and angst I see in that five per cent of people—and no doubt they go to Deputy Speaker Hatton’s electorate office as well—it suggests that it will be a difficult path. But if it does happen, they can choose to come back to court to formalise that agreement so it can be enforced by the court. If there is still no agreement then the court must make orders contained in a parenting order. These parenting orders may include dispute resolution processes, living arrangements, responsibilities and contact with the parent and other relatives. That is certainly a welcome addition. In short, the orders may include any aspect of the care, welfare or development of the child. This order is subject to any subsequent parenting plan agreed to by the parents.

The court proceedings, we are told, must be child friendly, less traumatic and easy to navigate, and the assignment by the court of a case manager or a family consultant or a family dispute practitioner, as well as an independent lawyer to represent the child’s best interests, will be of great help to all those involved. So far so good. But, as is already well recognised, retribution and the parents’ own intractable self-interests can render any sort of agreement impossible. Consequently, the court is exempted from ordering counselling or dispute resolution from the outset if the court is satisfied on reasonable grounds that there has been or there is a risk of child abuse or family violence or entrenched conflict.

The reality of violence and fear or of entrenched conflict or child abuse all too often is a pivotal point in family break-ups. The bill recognises this by rightly including the need ‘to protect the child from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence’. This is a primary consideration that determines the best interests of the child at every step of the process, although I, too, would be more comfortable at seeing it placed above considerations of the benefit to the child of having a meaningful relationship with both of the child’s parents in the bill itself, as suggested by the opposition’s amendment. Given the overwhelming concern this issue generates, it would be helpful to emphasise the safety and wellbeing of the child as paramount for those affected parties reading the legislation itself.

This brings me to another issue of domestic violence or intimidation. As already expressed, there is a very real concern about the reporting by victims of domestic violence. The penalising of false allegations made by an applicant is appropriate. But when this is applied to the allegations of abuse or violence, we run a very serious risk that the victims of abuse—who are already in a position of loss of power and intimidation—may not disclose things because of what they perceive to be, and what realistically is, a terrible risk of not convincing the court that abuse has occurred, thus also suffering the consequences of penalties that may include fines, a bond or reduced rights within the resulting parenting order.

To counter this possibility, I would support amendments to allow a subjective definition of family violence by removing reference to what might be ‘reasonably recognised as a threat’ and adding ‘conduct witnessed by a child’ where a person intentionally causes physical or psychological harm to a member of the child’s family. Any reasonable person would agree that this is an appropriate amendment. I agree that any changes to the definition of family violence should be put on hold until we can consider the results of the recently announced review into violence in families and family law. I am happy to learn that this government has accepted the need to invalidate any parenting plans that are obtained under coercion or duress.

The aim of the legislation to promote the wellbeing of the child through shared parenting and meaningful roles by both parents is inarguably right. Language is a powerful tool that shapes and affects expectations and consequent actions, as will this bill and the words contained in it. Why, then, is the misleading term ‘equal’ used in relation to parental responsibility instead of the term that actually means what it says, ‘shared responsibility’? These words are in the title of the bill. This is an irresponsible use of language given the very serious context of this bill and its intent to guide people into approaching family break-up in a more cooperative way, without using the child as a weapon for retribution or control. The intent is given in the bill’s title—the Family Law Amendment (Shared Parental Responsibility) Bill. This needs to be consistent throughout the bill.

I am concerned, therefore, that the court is required to consider the making of an order for the child to spend equal time with each of the parents as a starting point for contact. This appears to directly contradict the explicit terms of reference for the inquiry that examined this bill:

The Committee should not re-open discussions on policy issues such as the rejection of the proposal of 50/50 custody in favour of the approach of sharing of parental responsibility.

Regardless of that, considering that equal time should be both in the interests of the child and reasonably practical, it is highly unlikely that such an order would be made. Certainly, international research has shown that time split equally is not in the best interests of the child, and I assume those of us with children would understand the potential effect this could have on a child.

I again refer to the power of language in shaping expectations and intentions and wonder why this is seen as the starting point when a more appropriate term is used in the bill—‘consideration of substantial and significant time’. I take the point made by the previous speaker, who spoke of the distance that can develop between children and their non-resident parent, which is most often the father. I am aware of concerns about the lack of input by the father in some or perhaps many circumstances, but I really think it is unrealistic to work on a mathematical formula in this process. Time spent with the non-custodial parent does need to be substantial and significant, but it needs to be flexible enough to always maximise the best interests of the child.

Any such order must be in the best interests of the child and, sensibly, the court must consider the distance between parents’ homes, the capacity of parents to meet this arrangement, and importantly, their ability to communicate with each other to resolve consequent difficulties or other relevant matters. I also welcome the consideration of the child’s extended family being allowed the opportunity to spend important time with their grandchild, cousin or what have you. Inclusion in a wider family can be an important reassurance for children, especially those who have lost continuing contact with the other parent.

The presumption of equal parental responsibility confirms the right of both parents to make decisions jointly about ‘major long-term issues’ around a child’s education, relocation of the child’s home, religious and cultural upbringing, health and name. It does not include the right of a partner to have input into decisions about the other partner entering a new relationship. The opposition’s amendment proposes to elevate this from a note into the body of the legislation, which emphasises this point. The word ‘responsibility’ surely underlines exactly what the best interests of the child are. However, responsibility can easily be confused with a right, and this, coupled with the presumption created by the word ‘equal’, could again provide a weapon for a manipulative partner to control and intimidate the other partner. I hope the other provisions within the bill will be sufficient to guard against this.

While the emphasis in the bill is to encourage cooperation between parties, it is realistic to ensure a compliance regime is in place to deal with repeated or serious breaches of parenting orders. The courts may already award compensation for reasonable expenses or appropriate legal costs to be paid to the other party. This bill will allow the court to also vary the parenting order as it sees fit, which may be a necessary revision in order to deal with the actual breach. For more serious contraventions, such as repeated harassment or removal of the child to another place against orders of the court, the court can still impose bonds and community service.

There is always the possibility that a breach in orders may occur for very valid reasons, so I am reassured that ‘the court must have regard to any kinship obligations, and child rearing practices, of Aboriginal and Torres Strait Islander culture’ in relation to parental responsibility. I hope this is extended to a similar cultural sensitivity in all other aspects of the new regime. I also support any amendments that take into account whether contravention is informed by a genuine belief that it was necessary for the health or safety of the person or their child. This is an important and realistic check to the compliance regime.

These reforms have bipartisan support, and I hope the proposed amendments will be considered and, indeed, accepted in good faith, for none of us would want to play politics with such matters. I remain concerned about the logjam in the court process. Only the other day a constituent detailed to me his absolute frustration at being unable to secure a court hearing until July or August this year—3½ years after interim orders were first put in place. He is concerned for the welfare of his children and wants his day in court to explain why those orders need adjusting. There is also deep frustration at the lack of legal aid and the huge expense involved in hiring lawyers for protracted legal proceedings.

There should be a shared parental responsibility but, as with the political mantra of the past decade of mutual responsibility, there is a collective responsibility for all of us to ensure we examine those policies or lack of policies that contribute to family breakdown. I mention the increasingly casualised and, in some places, fearful of job security workplaces and the lack and unaffordability of child care as two contributing factors.

Ten years on I want to make a note of thanks to Helen Bergen in my staff for the work she has put into this very complex legislation and my contribution to it and to all of my staff, Tim Mahony, Dianne Abbott, Eileen Webb, Brian Hustwayte and all those other staff, supporters and constituents of Calare over those 10 years. I commend this legislation to the House.

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