Bruce Billson (Dunkley, Liberal Party, Shadow Minister for Small Business, Competition Policy and Consumer Affairs) Share this | Hansard source

I first of all acknowledge the students from Elisabeth Murdoch College and their teachers Kevin and Amy, who are in the gallery today. It is great to see young people gaining a sense of how the legislative process operates in Australia as part of their education. I welcome them warmly and hope today is informative and useful for them.

The discussion we are having now is about amendments to the family law framework. The Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 is not without some contention. It seeks to amend a body of law that for all members in this parliament is a very difficult area in which we are all called to work and to assist people aggrieved by a process that, by its very nature, means we are engaged because people are frightfully unhappy—and I commend the previous speaker, the member for Page, for that phrasing. The dissolution of a relationship or the breakdown of a family is traumatic and difficult enough at the best of times, but our legal framework expects people who might have—dare I say—a hatred for each other to somehow rise above their personal feelings and to be very objective, calm and open to mutual adjustment at a time when they would probably rather drive over the other person with their car. This is an awful lot to ask.

All the qualities and characteristics we hope would come to the fore after a family finds it can no longer maintain the unit and the harmony that it may have once had are very difficult to find at a time of such distress, at a time of disappointment and at a time when what was once, hopefully, a collaborative relationship between parents may have become quite combative. In the 15 years I have been in this place, few areas have attracted as much effort from me or as much tension in the constituency as this area of family law, because people come to my office when they are very unhappy and they are looking for a way to resolve that unhappiness.

In a perfect world, as was touched on by the previous speaker, a family breakdown or dissolution will not ever come to fully utilise the provisions of the law we are discussing. Parents with a shared and deep commitment to the wellbeing of their children will work through what works best for the kids. In my contributions to this debate I often say, 'For the sake of the kids, let's find a way of making this work better.' I am pleased to say that the Howard government did find a way of making it work better, with a series of reforms that I think were quite groundbreaking and followed an enormous amount of work. Admittedly, there were some incremental improvements over time, but it was an effort that brought to the fore an improvement in the tool kit that is available to resolve these very difficult and at times combative and distressing family law disputes. If people can sort these things out amicably and in a spirit of mutual adjustment—one where their love and devotion for each other is no longer the issue but where there is a joint-venture between the parents to raise healthy children—many of the provisions of this law are not called upon. What we are actually talking about is a legal framework which seeks to encourage people to behave in a way that might not be the way they are feeling. As I have often said, trying to use black-letter law to get people to behave in a way that is not in their hearts is very difficult.

We are back here today searching for new legal instruments to try to encourage people in situations where collaborative problem-solving, shared purpose and a new joint venture to raise healthy children may not be what is in their hearts—they may just want to win. They might want to win what they might view as the last argument with their partner or spouse at the end of a long period of unhappiness. Or they might just want to make sure that they do not lose too much.

When I was first elected, the family law process seemed to adopt a winner-take-all approach. If you won the argument, all of the policy settings flowed your way. For too many that meant a role specialisation. During the relationships, parents would share in the raising of children, the securing of money and resources, and the giving of their love, care and support for their loved ones. When the relationship fell apart, it was almost as if there was a role separation. You became either the carer—there was a term 'custody' and a sense of ownership of the children—or you were basically left to bankroll the place. One was the carer and the other was the cash cow. You can see how that would be unsatisfactory for many, because the relationship had been so much more before the marriage came to the point where it needed to be dissolved.

There was a fantastic body of work done by the House of Representatives Standing Committee on Family and Community Affairs. It produced a report entitled Every picture tells a story. I pay tribute to Kay Hull and the team on that committee who worked through the difficult, emotional and at times traumatic task of trying to unpick so many individual experiences to try to find a better legal framework to support care arrangements for children after a relationship dissolves. What was interesting was that, at the end of that work, some of the tools were legislative or legal. But there was an insight that that on its own is not enough. The work of that committee brought forward the creation of the family relationship centres. This was a change in the toolkit which helped to create some prospect that people would get help at a difficult time to work through questions about who would give primary care, what the shape of the care would be or how the financial needs of the children would be met. That was a terrific body of work, but there were also some legislative changes sitting alongside the provision of resources for the community and families to use in those sorts of situation.

I want to pay particular tribute to the Family Relationship Centre in Frankston for its remarkable work and the recent report it published showing that it is making a very real difference in the lives of people facing a very traumatic stage in their life and in their children's lives. I salute all the people involved in that area. Helen Constas and her team and the committed professionals and volunteers at the Peninsula Community Legal Centre are also part of the picture in providing help for people to understand the legal framework so they can mediate and negotiate and explore possibilities. Not far from Frankston Station there is a little place where courageous people make sure access arrangements and time with children can be facilitated, observed and even supervised—to make sure that violence does not play out. That service is a very important and overworked service.

So there was a broad toolkit of support in addition to the law, but there was also an acknowledgement that we had not quite got this right and that we needed to revisit our approach. So a number of reviews were part of that package of measures, and those significant 2006 reforms to the law and to some of the infrastructure that sits around it were partly what fed the discussion today.

What we are talking about is: can we improve that system? The government has come forward with what they think might be ways of improving it. I am very interested in those opportunities for improvement, because I am not convinced that we have it precisely right. But I am also not entirely optimistic that we will ever get it right, because it does require participants to take some responsibility for their own actions and the wellbeing of the children they have brought into this world—and how you get that message across is a difficult problem.

One of the key elements was this idea of a presumption of equally shared parental responsibility. The idea there was not that someone would come to a discussion about future care arrangements with a right or entitlement to share the care as a card that they could play in the argy-bargy that took place as these arrangements were being sorted out. What it aimed to say was that a parent—mother or father—can make a meaningful contribution to the raising of children. Just as we value and make sure that people make financial contributions to the raising of children, surely parental care, support and nurturing should be part of that contribution—a rounded contribution that is in the best interests of the children. That was one of the presumptions made. To many it overcame that point that I was making the earlier about the 'winner takes it all' attitude that made some of these family law processes incredibly combative. That approach set it up so that, where there was a contest—not in every case—the outcome for care arrangements was black or white, not shades of grey.

The new presumption meant that the court was asked to consider how care arrangements could be best set up where parents had an equal commitment to the best interests of the child. A series of checklists was brought forward to work through that. The wellbeing of the child remained at the pinnacle of those considerations, but there were a range of other considerations that could be brought in. At the heart of these was the objective of ensuring the child maintained a meaningful relationship with both parents, although not at the expense of protecting the child from harm. But there are examples which show that that idea, and the legal framework which supported it, has not always been well implemented. I am always cautious about junking a legal provision, because the problem may be that it is being exercised poorly rather than that it has been poorly framed. All the reports that have been done—whether it is the Chisholm review, whether it is the Family Law Council report, whether it is the report of the Australian Institute of Family Studies—have again and again identified the need for training and professional development to be improved; the need to build knowledge and capacity to make sure that legal provisions are properly exercised and implemented; the need to deal with what may be argued is a misunderstanding about the primacy of the protection of children and the subsidiary nature of other considerations.

I am not convinced that the law needs to be changed in the way proposed in the bill. My reading of the law and my consideration of the reviews into it suggest that there may be some misunderstanding or confusion, but I am not sure that that resides within the law itself. I think there is a considerable opportunity to build, amongst the professionals who are involved in the process, awareness and knowledge of its implementation and the use of evidence and information to inform better decisions. That process is always guided by the best interests of the child but takes into account other legitimate considerations, with the ambition of optimising the contribution of both parents, not just financially but also in terms of their love, care and support.

Family law is an area where concerns about violence and child abuse have often emerged. Family violence is abhorrent. It is completely unacceptable in our community, and it is particularly unacceptable at a time of family adjustment and transition such as during the dissolution or discontinuation of a relationship. The dissolution of a relationship may be a consequence of abuse and violence, and of course that must be taken into account and be a key consideration in the prime objective, which is the wellbeing of the child. That has to be there, and the machinery is there to take that into account.

There are the arguments about how well we go about reporting family violence. There are also arguments—and I have seen this in cases brought to me by advocates—about how effectively family violence is considered in individual cases. That consideration has to be there and it has to be objective, based on reason and with the capacity to validate someone's concerns. If not, those concerns emerge as a tactical argument; as a positioning proposition; as a card to be played, because it is seen to be advantageous, by one party in what may already be a combative dispute over the future care arrangements for children. Those cards should be played where it is valid and reasonable to do so. If the reporting framework for family violence and abuse is inadequate to provide for that card to be a verifiable assertion, rather than an assertion that cannot be backed up or is contested by others with an understanding of the family circumstance, then you need to consider carefully how much weight you give that card.

This bill does not seek to strengthen reasonable concern about violence and threats to the child or the parent as a fundamental consideration in the wellbeing of the child and the family unit; rather, it seeks to redefine it in a way that I fear is unsafe.

The coalition's amendments to this bill are reasonable. I urge the government to take account of them, realising that it is not always the law but may be the way— (Time expired)

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