Harry Quick (Franklin, Independent) Share this | Link to this | Hansard source

The original question was that this bill be now read a second time. To this the honourable member for Gellibrand has moved an amendment that all words after ‘That’ be omitted with a view to substituting other words. The question now is that the words proposed to be omitted stand part of the question.

Julia Irwin (Fowler, Australian Labor Party) Share this | Link to this | Hansard source

The Family Law Amendment (Shared Parental Responsibility) Bill 2005 comes to this House as another attempt by government to try to get right the difficult issue of Australia’s family law system. As a member and the deputy chair—and you, Mr Deputy Speaker Quick, are a member of the committee—of the Standing Committee on Family and Community Affairs, as it was known in the last parliament, I can say that this issue is one that has demanded a great deal of thought and concern. In the foreword to the committee’s report, the committee chair, the member for Riverina, spoke of the impact on her of the 14 young people who gave evidence to the committee. She singled out one young person, Jack, who gave the committee his story by way of four drawings which showed in a very direct way the impact of family separation on children. Jack’s drawings gave the report its title, Every picture tells a story. But to put that into perspective we must realise that Jack’s story of family separation is in some way repeated in the lives of more than one million Australian children who today are affected by family separation.

This is a major issue, Mr Deputy Speaker, as you do know, affecting a very large part of our young population. We should not forget the parents, grandparents and others affected by family separation. Family breakdown in Australia is estimated to cost between $3 billion and $6 billion a year, but the cost in human terms—in the terms shown so graphically in Jack’s drawings—represent a cost that no Australian child should be asked to bear.

For the sake of those one million Australian children alone, this parliament must set itself the task of drafting a family law system that brings fairness and transparency to all involved. We must examine with a fine toothcomb the proposals put forward by the government in this bill. We have to draw on all of our experience and the advice of experts to make sure that what we are putting in place not only will work in the best interests of the children affected but also will provide a measure of certainty and justice to the hundreds of thousands of parents caught up in our family law system.

We must also consider the effect of these changes in the light of other changes now working their way through our social and economic systems. We must consider the impact of the government’s so-called Welfare to Work changes. We must consider the implication of changes to our industrial relations system and we must also look at the impact on the balance between work and family issues of things such as the cost and availability of child care. But in all of this we must not lose sight of the impact on the children involved and, as far as possible, act in their best interest and allow them, when appropriate, a say in the outcome.

In looking at the specific measures contained in this bill, I will begin with the introduction of a rebuttable resumption of shared parental responsibility. This measure was one of the recommendations from the House of Representatives Standing Committee on Family and Community Affairs report Every picture tells a story. In its conclusion, the committee gave its definition of shared parental responsibility as:

… involving a requirement that parents consult with one another before making decisions about major issues relevant to the care, welfare and development of children, including but not confined to decisions about education, religious and cultural upbringing, health, change of surname and usual place of residence.

The committee added that this should be outlined in a formal parenting plan.

It should be noted that the Family Law Reform Act 1995 was said to have intended to create a rebuttable presumption of shared parenting, but the evidence given to the committee’s inquiry clearly indicated that what had happened in the courts and in the community after those changes did not reflect the intentions of the parliament when those reforms were enacted. That is worth noting when we look at the possible outcomes from these changes. The 1995 reforms may have changed the terms ‘custody’ and ‘access’, but their replacements, ‘resident’ and ‘contact’, have effectively taken on the same meanings. It is significant that, in many individual submissions to the committee, separating parents said that they acted on legal or other advice that maintained a winner or loser situation. As a result, the committee recommended that the terms ‘resident’ and ‘contact’ be dropped, to be replaced by family-friendly terms such as ‘parenting time’.

I have no difficulty with the concept of shared parental responsibility, but I do think that the House should be aware that it is not a concept that will be easily understood in the community. Unless it is very well explained in each case, we will find ourselves left in the same position that we have been in since the 1995 reforms. I should add that I do not see the basic three hours of free mediation provided by the proposed family relationship centres as being able to ensure that all parties fully understand the concept of shared parenting, but I will return to that later.

I want to move on to the proposal to require the court to consider equal, significant and substantial shared time with both parents. The committee expressed its view that shared residence arrangements should become the norm wherever practical, rather than the current emphasis on sole residence. The committee noted the 1997 ABS figures that showed that only 2.6 per cent of children in separated families were in a situation that could be described as shared care. By contrast, 74 per cent of children had contact with the non-resident parent less than once a week. In a 2000-01 survey undertaken by the Family Court of Australia, residence was awarded to the mothers in 78.4 per cent of cases where there was a consent application, in 75.7 per cent of cases that were settled after the commencement of litigation and in 69.2 per cent of cases that were tried. In the overwhelming number of cases, the mother was awarded residence.

When it comes to contact agreed to be granted to a non-resident parent, Family Law Court figures show that only 12.5 per cent of fathers were granted contact for more than 108 days a year. This figure rises to 18.2 per cent in settled applications and 29.5 per cent in judicially determined matters. I should add that the magic figure of 109 nights is a cut-off for the Centrelink parenting support payment, which has consequences for the income of residential parent.

It was clear that community expectations, and to some extent court decisions, place residence in the hands of mothers. The committee concluded:

... the current experience with sole residence orders results from the distinctions between residence and contact both in the legislation and in community perception.

The committee suggested that, to overcome the 80-20 outcome, language around shared post-separation parenting needs to be devised which is neutral and reflects assumptions that children will be given the maximum opportunity of spending significant amounts of time with each parent. I would have to add that I think it would take more than a change of language. In fact, it would require a major shift in community attitudes for shared parenting to become the rule rather than the exception.

With regard to the changes which will require courts to consider equal, significant and substantial shared time with both parents, changes to the law alone will not bring this about. A major shift in community attitudes would be necessary before equal shared parenting becomes more common. So I have to ask whether the government is not putting the cart before the horse when it comes to these changes. By requiring the court to consider equal shared time, the complex proceedings of the family law system can only be further complicated. The committee noted that only one jurisdiction in the English-speaking world has a rebuttable presumption of equal time.

I should also add from the committee’s report some concerns regarding the idea of a rebuttable presumption. In its submission, the Attorney-General’s Department stated:

... should an equal time presumption be introduced into the Family Law Act, one possible outcome of its operation could be that it would effectively replace the principle that the best interests of the child are the paramount consideration…

The Attorney-General’s Department went on to add:

Presumptions in legislation work best where they represent the norm or usual situation. …

As I have already pointed out, shared parenting is far from being the norm in Australia. Other problems identified by the committee in relation to shared-time parenting were that there are dangers in a one-size-fits-all approach, and in cases where there is ongoing conflict children may be at risk of exposure to such conflict. The committee also found that family-friendly workplaces are rare, as are the financial resources necessary to support two comparable households. Other factors include the lack of child-caring capabilities in some cases. There is also the matter of distance between households, which may create problems for transport and schooling, and there is the not uncommon further complication of combined families. The committee was left with the conclusion:

In the end, how much time a child should spend with each parent after separation, should be a decision made, either by parents or by others on their behalf, in the best interests of the child concerned and on the basis of what arrangement works for that family.

That is a difficult task and one which I am not yet convinced the measures in this bill will fully address.

The bill also seeks to introduce compulsory mediation before litigation in family law matters. I should point out that a form of compulsory mediation is already a part of the family law system. According to the family law court of Australia, for every 100 applications initiated, 58 involve a mediation or conciliation event. Of those 100 applications, only 13 proceed to a trial hearing and only six will be heard to judgment. It is fair to say that mediation and conciliation are already part of the family law system.

As far as mediation and the other changes in this bill are concerned, there is the introduction of less adversarial court processes for cases involving children, the promotion of parenting plans as agreed between parents without lawyers and an increase in family relationship services. There is an underlying assumption in this bill that, when it is introduced, all will be well—that the complexity of the family law system will be swept away and everyone will be happy. But, as I am sure the other members of the family and community affairs committee would agree—and this was a bipartisan report—this is a most difficult issue and there are no easy solutions. As the committee concluded:

Despite the intention of the Family Law Reform Act of 1995, shared parenting and shared physical care have not become a reality for the vast majority of separated families. There are still winners and losers and children are still treated as the spoils of divorce and separation. Whilst legislation cannot make people behave reasonably or be good parents, it can provide them with a template within which to develop their own parenting responsibilities ... The committee believes that shared parental responsibility needs to become the standard. It believes that this can be achieved in part by making specific adjustments to the legislation.

Having looked closely at possible changes to legislation, the committee concluded:

In the light of all the evidence the committee believes that all disputes about post separation responsibilities not involving entrenched conflict, family violence, substance abuse and child abuse, including sexual abuse, must be removed from adversarial court processes.

That conclusion led the committee to look to redesigning the legal system for family friendly outcomes. The committee took its lead from Professor Parkinson, who urged:

So I think we have some fundamental rethinking to do, not only about the law—maybe that is the easiest part—but also about the systems by which we adjudicate and resolve ongoing conflict between parents and children ...

This view was supported by Professor Moloney of the Department of Counselling and Psychological Health at La Trobe University. He called for:

... a less formal tribunal system that would be chaired by one or more individuals who have an in-depth understanding of child development and family dynamics and who, whilst retaining their authority, can engage directly and respectfully with family members.

Professor Moloney went on to describe a second benefit of a tribunal related to the involvement of lawyers. He said:

I think family members need to feel that they have been heard and that they can say what they need to say, not in a manner filtered by a barrister through legally modified language but directly and in their own language, to a decision maker who has the skills to check that he or she has indeed heard accurately.

While the suggested tribunal approach may be restricted to contact disputes initially, it is in this regard a model similar to that proposed by the Attorney-General’s Department and the Family Law Council. This legislation effectively puts such a tribunal in cold storage—which I am very disappointed about—to be thawed out only in the very likely event that the proposed system of mediation through family relationship centres is not successful.

By then, another committee will have revisited this issue and no doubt recommended the same seven-step approach recommended in Every picture tells a story. But, in the meantime, hundreds of thousands more families will face the unworkable family law system. I would definitely like to be proved wrong, but I greatly fear that the proposed family relationship centres will be a poor substitute for a tribunal. Rather than a first-stop shop for separating couples, the mediation will be little more than another hurdle to be crossed. With the exclusion of lawyers, the mediation process becomes a stand-off rather than a meaningful attempt at resolution.

Under the proposed tribunal, lawyers could be admitted or excluded at the discretion of the tribunal, allowing any legal points to be dealt with openly. I can imagine a typical mediation before the family relationship centre where both parents turn up with a list of demands drawn up by their solicitors. Do not think that will not happen. While we might like to think of family relationship centres as the first stop for separating couples, I think it is a safe bet to assume that their solicitor’s office will be the first point of contact no matter what system we have. Given the consequences for all parties of any outcome, one would be a fool not to speak to a solicitor. I know I would speak to a solicitor before any mediation. That is definitely not going to change under these reforms. I hope that these reforms will make a difference to this very difficult area of law, but I have to admit that I am very pessimistic. I hope that I will be proved wrong, but I do not think I will be.

Michael Johnson (Ryan, Liberal Party) Share this | Link to this | Hansard source

As the federal member for Ryan, it is a great pleasure to speak in the parliament on an important bill that the Howard government is putting forward for the parliament to endorse—the Family Law Amendment (Shared Parental Responsibility) Bill 2005. I would like to suggest to the parliament that marriage and family are the building blocks of our society. Marriage is a fundamental institution in our community. I think most Australians would share this view. That is certainly very much the case in my electorate. Families are built around marriage. As the member for Ryan, which I have the great honour of representing in this parliament, I say very strongly that families are my priority.

Of course, we all know that, unfortunately and with great sadness, many marriages do end in divorce in this day and age. We know that there is great sadness and tragedy within families when marriages end and families come apart. There are some 55,000 divorces in this country, all of which are deeply regrettable. It is our job as members of parliament and community leaders to try to minimise the number of these. Unfortunately, most of these divorces involve couples with children. As more and more Australians are getting divorced and separating, we are seeing in our electorate offices the increase in numbers of child custody battles and issues concerning child support. Since I was elected in 2001 I have had the opportunity to hear and see too many parents come to my office to talk about this terribly sad topic. Separating parents coming to talk about relevant issues of access, child support and custody is one of the most heartbreaking areas that I think a federal member has to deal with.

In my electorate of 90,000-plus constituents it might seem a drop in the ocean that the numbers are in the hundreds. But each one of those people represents a story. Each one of those constituents who comes to me represents an individual profile of emotions. I think it is important that the government does as much as it can to address and redress some of the very challenging issues that surround this.

Parents should not have the right to risk the welfare of their children out of spite or mistrust or hatred for their spouse or former spouse. The problem can be magnified much more by the emotional difficulty involved when we are talking about the welfare of children. At the heart of the problem with family law are child custody and child support. In this country it seems that, unfortunately, we have an adversarial system. The fundamental approach to this topic at this point in time seems to have an element of confrontation and conflict. The adversarial manner with which this issue is currently being tackled is deeply regrettable. It only escalates the problem.

In my electorate of Ryan, the majority of mums and dads who have gone through the process of separation and dealing with custody have not contacted me. At the same time, for the hundreds who have I feel a great deal of sympathy and sadness when they come to my office to pour out their emotions and their problems. As I said, the great majority work through the system. They somehow are able to work with each other, to discuss these issues and work through the problems to achieve some sort of compromise, to minimise the conflict, the hostility and, no doubt, the deep disappointment that follows a breakup.

Both men and women come to me with these concerns. They come to me to discuss the smorgasbord of issues that follows the terrible experience of separation and divorce. The complaints are very much about the system, the framework and how the government is dealing with it. It goes without saying that there is also great anger and frustration at the ex-partner. I know that there are mothers and fathers in the community who are striving very hard to do the right thing by their kids in difficult circumstances, and I want to pay tribute to them. They take their responsibilities as parents very seriously and they do want to do the very best for their children. After all, their children are the product of both of them.

From the experience that I have had in my five years as the federal member for Ryan I would say that there certainly seems to be a bias or a trend against men in child custody cases. I think that betrays prevailing notions of gender roles within the family. Unfortunately, over a third of children rarely see their fathers, if at all. This has also meant that men who want to shirk their responsibilities towards their families have been able to get away with it. This is reprehensible. There are also mothers who are using every bit of leverage they can to add to the angst and hostility that is already inherent in the separation or divorce. As I am sure all of us would know, there are many claims of child abuse, of changing child support estimates, of chopping and changing addresses and even of denying visitation times and contact hours to suit their own needs and to spite the other parent.

No-fault divorce was established in 1975 by the Family Law Act. We know that no-fault divorce was introduced to allow partners to release themselves from unhappy marital relationships. Unfortunately, where children are involved, unhappy marital relationships are sometimes replaced by a lingering element of conflict that spills over to not only the ex-partner but the children. I think that the adversarial system that I have touched on does have much to answer for. It is imperative that as a government we try to address this and we try to make the system as good as we can. That is what this important bill before us today does.

The legislation before us is one component of an overhaul of family law in this country which tackles the problem on three fronts: introduction of a new community services program to help resolve and reduce family conflict; reform of the child support system; and changes to the Family Law Act. The aim of these reforms is to overhaul the attitudes of Australians involved in family separation from one of conflict and an adversarial mind-set to one of cooperation and shared responsibility. The major flaw in the current system is that parents are trying to get away with as much as they can. The worst outcome is, of course, to see the custody of their children as some kind of prize or trophy that they are able to win at the expense of their former partner.

The interests of the child remain absolutely fundamental in all these reforms. They will continue to be the overriding priority of this legislation and its outcomes. Children have a right to physical and emotional health and safety and the right to know both of their parents. The rights of children to know both their parents and be protected from harm are the primary factors when judging these issues.

The major reform of this legislation is enshrining a presumption of equal shared parental responsibility. I want to stress in the House today that key word: presumption. The courts will be required to consider whether equal time with both parents is reasonably practicable and in the bests interests of the child. Again, we come to the defining criteria—that is, that it is reasonably practicable and that it remains in the best interests of the child. If it is not practicable, then substantial and significant time must be considered as an alternative, not the presumption of equal shared parental responsibility.

The definition of ‘family violence’ will be amended to make it clear that fear or apprehension of violence must be reasonable. Domestic violence and child abuse are issues that must be taken very seriously. As someone who has come to this parliament as a qualified barrister and having practised for a short time, and having had clients who were involved in domestic violence issues, I know how that operates in my state of Queensland and how that very important aspect of the law can be misused and abused by a certain partner.

When warring parents throw accusations at each other trying to exact vengeance or gain some sort of sympathy, it diminishes those who actually suffer violence and intimidation in their homes. We all know that every false accusation means that the real victims of domestic violence will find it harder to be trusted and to have it believed that they are authentic and genuine victims of violence. It is the story of crying wolf. The more times you cry wolf, the less you are going to be believed that there is a wolf there. I want to encourage those in this situation to resist as much as possible the very strong temptation of engaging in false accusations against someone whom they have previously had much affection for but in the break-up might wish ill will upon.

The enforcement of parenting orders will be strengthened. These are serious court orders. They are part of our law, and parents who thwart them or defy our courts should not be let off lightly. We would not let anyone else get away with it, and it is a very serious matter for the welfare of the children involved. We have to make sure that these orders are enforced.

Previous speakers have commented on dispute resolution. I again want to talk about the importance of trying to get away from the system of conflict, the adversarial system, that we have and to encourage those going through this process to, as much as possible, try very hard to be generous of spirit in dealing with this terribly difficult issue, because where there are children surely their children, above all else, must come first.

When I sit down with a constituent of Ryan who comes to see me or when I receive a letter or an email detailing some of the terrible difficulties that constituents are experiencing with child custody or child support, I must acknowledge that it is a very trying time. It is not something that I really look forward to in terms of the vast array of matters that come across my desk, but it nevertheless is very important to be available for those who come to see you, to seek your counsel and to seek your genuine and practical help. I do find on some occasions some of the stories that are related to me to be just absolutely unbelievable, to be incomprehensible, to be terribly sad, and of course, on some occasions, the conduct of some parents I find to be reprehensible.

I want to briefly recount one case in the parliament today that demonstrates the sheer callousness of the conduct of some parents—and of course, given privacy matters, I am not going to reveal the names of those involved. In this particular case, where a Ryan constituent came to see me, the victims were a father and his two children, but of course in the example the gender could easily be reversed. In this case the gentleman from my Ryan electorate came to see me after his ex-partner had abandoned their two children, 11-year-old twins, in the car park at a local shopping centre. She had a row with the children and just left them in the car park with no way to get home. These were two 11-year-old kids who were left to fend for themselves.

It was dark, the shops were shutting and fortunately these young children had the resourcefulness to borrow a mobile phone from someone at the shopping centre. They called their father for help. He came to their rescue, picked them up and took them home. But 1½ hours after abandoning these children the mother phoned the father, no doubt thinking that the children might be with him. They were of course, and she demanded that they be returned to her immediately, otherwise there would be great consequences. The poor children were very frightened and very upset by this ordeal. They were terrified of going back to their mother, but this gentleman had no choice but to return them to her.

He was, naturally, very concerned about what had happened. He took it upon himself to call the Queensland government Department of Child Safety, and I wish that what I could say about their response was not what I am about to say. He encouraged the department to log this incident so that it could be on the record. Unfortunately the absurdity of it all is that, after coming to the rescue of his two young children, he was told by the Department of Child Safety that he had in fact violated his court order by contacting his children in the first place. This was a non-contact day and by going to that car park and picking up his children in these circumstances he was condemned for violating the orders of a court—a very troubling set of circumstances. I am not sure what the Department of Child Safety expected that parent to do in those circumstances—just to hang up on his children is a conclusion that might be reached, but that sort of response is reprehensible and ought to be condemned. I hope very much that that individual, that bureaucrat, who it no doubt was, will hang his head in absolute shame.

The work of the child safety department is important and they ought to be more compassionate and more understanding. But this is just one example, very regrettably, of what is happening in the real world—not in some office building, not in this place, but actually in the real community, out in the suburbs, out in the towns across this country and we have to deal with it. You would think that people who have children would put them right at the top of their concerns and their priorities. With human nature being what it is, that would be the conclusion one could come to, but maybe that is not the case—obviously that is not the case in so much of what we know from experience.

I want to end my remarks here by commending this bill to the House. I think it is an important bill. I commend all those who were on the relevant committee that explored this difficult issue. We do not have the wisdom of Solomon in the parliament here, but we certainly try to come to the best results and outcomes and to deliver the best circumstances for the people of Australia in what is a very difficult case. I absolutely implore all Australians and certainly all the constituents that I have the great honour of representing—particularly those constituents who are going through this, no doubt, very sad and difficult situation of ending a marriage and a life together—to try to come to some kind of resolution, to put aside the past and to go forward.

My wife and I have friends who are going through this very difficult situation. Regrettably, there is animosity and hostility. Our friends who are in this situation have three children. We have had the pleasure of their company over the years in their home, and we now see them fighting each other and fighting over their children. It is almost like the spoils of war, from what we see as friends on the outside. It is terribly sad. I encourage those friends of mine to come together in the best interests of their three beautiful children because, at the end of the day, their children should be their most important concern.

I am about to be a father in several months time. I am going into the fatherhood club. I think I should deserve a medal, from what I have been told lies ahead of me with my wife, who is sitting here today. I look forward very much to that great privilege. I have said on many occasions in this parliament that it is a privilege being a member of the parliament, but I can think of no greater privilege and no greater honour than being a father. I know that my friend and colleague here, the member for Blair, and my new colleague in the parliament, the member for Kingston, have children—and I will be joining their club. (Time expired)

Jennie George (Throsby, Australian Labor Party, Shadow Parliamentary Secretary for Environment and Heritage) Share this | Link to this | Hansard source

I want to begin my contribution on the Family Law Amendment (Shared Parental Responsibility) Bill 2005 by saying that one of the highlights of my career as a parliamentarian was the opportunity I had to be involved in the major reassessment of the operations of the Family Law Act and the child support system. I say that because, like most members of parliament, I know how important these issues are to the lives of many of our constituents and how much of our personal time is involved in trying to help resolve very complex and at times tragic circumstances.

For an intensive period of around six months in 2003 the House of Representatives Standing Committee on Family and Community Services participated in an exhaustive inquiry which led to what I believe is a very important and groundbreaking report—Every picture tells a story. Over 2,000 people contributed to the inquiry by making submissions, by appearing at our hearings, through the facilitation of our visits to courts and mediation centres and through the range of exhibits that we were asked to consider. I think it is important to note that all states and territories were visited as part of our wide-ranging public hearing program.

The final recommendations of the report were adopted unanimously and made in the spirit of genuine bipartisanship on issues that, in my view, really do transcend party politics. I want to take the opportunity to commend especially the commitment and the effort of the chair of the committee, the member for Riverina, Kay Hull. She worked very hard, trying to balance the competing views and different priorities and interests of a diverse range of members on that committee. I think it was largely due to Kay’s efforts that we were able to come to a unanimous agreement on all the recommendations. Kay ended her foreword to the report by stating:

We have worked together and completed the first step—the report. We must now continue to work together to ensure it is implemented.

I agree. Finally, after quite a lengthy gestation period, we have come to the implementation phase.

There is no doubt in my mind that, as a result of the debate we are having on this bill and the amendments that will be considered, the final outcome will lead to a major overhaul of the family law system and address the issues of major concern that came before us during the course of the inquiry—and, I might say, not before time. The amendments moved by the Labor Party have been addressed comprehensively by the shadow Attorney-General, so I do not propose to add significantly to that contribution, because I want to make my remarks as a layperson, not as a lawyer. It is as a layperson that I am trying to balance the concerns that come before me, and I want to feel comfortable that the legislation that finally results from our deliberations will make it easier for the layperson and the people involved in the system to seek a better outcome than has been the case until now.

During the course of the hearing, I was very privileged to hear at first hand some of the very personal cases and concerns that were brought to the committee. As others have noted, there were times of really quite high emotion. But I think that all who came before us were genuine in their desires to see improvements to the system. As a child of divorced parents, the one thing that struck me was that in Australia today almost one million children are growing up with one of their natural parents living elsewhere, and in 88 per cent of the cases the absent parent is the father. It is quite alarming that 35 per cent of the children in Australia who are now in sole care visited their other natural parent either rarely—that is, once a year or less—or never at all. That is about 350,000 children in that situation, the social consequences of which should be a matter of major concern to us all. With such a damning statistic it is no wonder that many separated parents, predominantly fathers, feel excluded from their children’s lives following separation. Less than three per cent of children—some 25,500—were in what we call shared care arrangements, which are defined as each natural parent looking after the child for at least 30 per cent of the time. Even in the shared arrangements a very small proportion of children were being looked after by either parent for at least 30 per cent of the time. So it struck me that something was seriously amiss. The Family Reform Act 1995 was meant to have created a rebuttable presumption of shared parenting, but all the evidence showed that this was not the outcome either through the procedures of the court or in the non-court negotiated outcomes.

Another major issue of concern was the strongly held views of the people who appeared before us that the system operated in a manner that led to an 80-20 outcome in parenting arrangements. We heard repeated references from our witnesses to a ‘cookie cutter outcome’ which had become the norm, a norm which led to the mother usually being in the position of the sole resident parent and the father’s contact being restricted to alternate weekends and half the school holidays. The common 80-20 outcome seems to have been perpetuated both in court decisions and in the legal advice being given to parents in out-of-court settlements. So this perception was widely held, and I have to say that the data we read from the Family Court confirmed this perception. In just over 40 per cent of consent applications, contact was being awarded to the non-resident parent at the level of 51 to 108 days, and in over 70 per cent of cases when determined by a judge. So you had to come to the conclusion that the perception out there of the cookie cutter outcome was indeed the reality in many situations.

Section 60B of the existing Family Law Act sets out the importance of a child’s right to continue to know and be cared for by both parents, but the outcomes in practice did not support this important principle. So, from my point of view, there had to be a better way of ensuring that the law operated in a way that maximised the amount of time children spent with each parent after separation. Of course, it is important to reassert the exemptions we made to the notion of the presumption of equal shared parental responsibility—that is, in cases of entrenched conflict, in cases of family abuse or sexual violence, that presumption would not apply. I do not want to suggest that all parents are wonderful people. Sometimes it is in the best interests of the child to cease contact with one or the other parent on those serious grounds. But, in general, I certainly believe that the law had to be changed to reflect changes in society and the changes that were occurring in our desire to ensure that men accepted a greater role in parenting responsibilities.

The committee was asked to consider whether there should be a presumption that children will spend equal time with each parent. I am sure that the advocates of this proposition were partly inspired by what they saw was occurring in practice—a practice that they thought left far too many fathers in particular missing out on the important phases of their child’s growth and development. For sensible reasons the committee unanimously rejected this approach in favour of a clear presumption of equal shared parental responsibility. By that we meant that both parents should be consulted and consult with one another before major decisions are made in relation to the care, welfare and development of children, including but not confined to education, religious and cultural upbringing, health, and usual place of residence. We hoped that, in the majority of cases, these shared parental responsibilities could be expressed in the form of a parenting plan.

In terms of acting in the best interests of children, I again state that there should always be a clear presumption against shared parental responsibility in cases where there is entrenched conflict, family violence, substance abuse or established child abuse, including sexual abuse. I have some regrets that the bill before us does not pick up all the grounds for the presumption not being given effect. It does narrow it down somewhat from all the cases that we believed ought to act against a presumption of shared parental responsibility.

The committee rejected a mandated equal time template. There are dangers in a one size fits all approach to the diversity of family situations and the changing needs of children. We all know from our own experiences that there are many practical hurdles to overcome in moving to a greater emphasis on shared residency arrangements. For example, workplaces need to be a lot more family friendly than they are. We know that in reality we do not want to create situations where we believe we are acting in the best interests of children but where distances between households of separated parents can create insurmountable transport and schooling problems.

We also need to acknowledge that there is a weight of professional opinion that stability in a primary home and routine is a good option for young children in particular. I want to quote from the Australian Institute of Family Studies on this point. They make this point quite validly, saying: ‘Each child and each family circumstance is unique, so you need to take each case on its merits.’ Decision-making rules should encourage ‘different and more creative ways that parents can arrange care, so that if parents separate they can look at different ways of doing things.’ But there are important lines to be drawn, as one professional, Dr McIntosh, concluded in his submission to the inquiry. He said—and this is very important:

The findings … are unequivocal, and unapologetic regarding parental conflict and impacts on child development. Yes, children are strong; yes, development is robust; no, divorce does not have to be damaging; yes, parents basically want the very best for their children; and, yes, enduring parental conflict places the odds against all children, in all families.

In the end, how much time a child should spend with either parent after separation should ideally be a decision made by both parents, whenever possible. Decisions are made in the best interests of the child concerned and on the basis of what arrangements work practically for that particular family. A recent editorial in the Sydney Morning Herald commented on the proposed changes in the following terms:

No-fault divorce is a decades-old concept, but the issue of fault enters divorce proceedings when assets are divided and a dispute over child custody arises. The court’s bias in favour of custody for mothers reflects the historical reality that mothers spend more time than fathers raising children. In an era of presumed sexual equality there can no longer be a presumption that the father does not have a vital role to play in the upbringing of a child. Each case will be determined by examining the family history and the unique circumstances of each divorce. Under this legislation, if a father has a record of diligence as a parent, this should be recognised by the court. It also follows that a diligent mother should not have to carry an excessive burden of care.

I was quite intrigued by the argument advanced in this editorial because, being a feminist, I think it is important that the institutions in our society are just and reflect the changing realities of family formation and family life, and women’s roles in both the home and the public spheres. Referring back to those statistics that I talked about in terms of the 80-20 outcomes, it seems to me that those outcomes determined by courts and in the shadow of legal proceedings reflected a bygone era—an era where dads in particular probably did not have the same enthusiasm to take on board parental responsibilities and be more involved in the upbringing of their children. Well, that is changing for the better.

The other thing that struck me wherever I travelled and listened to witnesses was the widespread dissatisfaction with the current family law processes. No doubt lawyer colleagues may not like to hear what I am about to say, but it is based on evidence presented to the committee and it is important for the legal fraternity to give due consideration to these concerns. The witnesses said time and time again that the system for resolving family disputes and care of children post separation was a very legalistic one. It was seen as adversarial—a system that produced winners and losers. They also pointed to the high costs of pursuing legal redress, which means that justice, in my view, is being denied today to too many people, and to too many people in electorates like mine where money is often a prohibitive factor in trying to pursue justice.

The huge expense of pursuing the enforcement of court orders once made makes a mockery of a system that should be ensuring just outcomes for all. If you do not get justice because you cannot afford it then justice is being denied, and that is not a situation that I can live with; it is an untenable position. In the words of Professor Parkinson, who made a significant contribution to the deliberations:

… the court system has not changed. The court system is fundamentally predicated on the idea that there is one major issue to resolve sometime after separation: where the children will live. It is an inflexible system. It is an adversarial system.

…            …            …

The system is not well attuned to the fact that families are dynamic.

The committee was strongly of the view that radical changes were needed to make the family law system less dependent on lawyers, less dependent on courts and less dependent on costs—and those costs, as I said earlier, were prohibitive for many who presented their testimony to us. That is why the committee went down the route of recommending compulsory mediation and a non-adversarial tribunal—which regrettably the government did not pick up—together with a more restricted role for the Family Court, with processes that were less formal and less legalistic. The family relationship centres, the proposed compulsory mediation processes and parenting plans are some of the outcomes of our findings reflected in the legislation before us, which I certainly welcome.

The new family relationship centres are consistent with one of the important recommendations we made. We hope that through these centres the processes will be easier for mums and dads to make decisions jointly, to reach agreement at a much earlier stage in the separation process, thus avoiding, wherever possible, conflict between parents becoming entrenched. We hope it will resolve the child custody disputes without having to go to court. We see this process as keeping lawyers out of the early stages of negotiation and placing a greater reliance on dispute resolution and mediation. We hope it will lead to agreements on parenting plans that will have legal effect, and we hope that it will help to resolve disputes outside the courts.

A major cause of conflict between separating parents has been the breach of parenting agreements, and court orders in particular. I referred to this aspect earlier as one of the major failings of our current system. I am certainly hoping that the processes of the family relationship centres will address that very important issue. One of the initial centres will be based in Wollongong, and I welcome that development. It will be a great service to many of my constituents, and I will watch its operations with keen interest. I think we need to ensure that the tender process is open, transparent and accountable; that the services will be high quality, properly supported, correctly placed and regulated; and that we do, by law, guarantee access to at least three hours of free mediation.

The other vexed issue that we had to deal with was the issue of allegations made about violence and abuse. It is not an easy issue to resolve, but I do welcome the government’s announcement of a more thorough look at this critical issue, which was constantly raised during our inquiry. The issue concerns how we deal with accusations of violence and abuse and how those accusations are handled between jurisdictions and by the courts. We heard repeated evidence about claims of false allegations and false denials about violence and abuse, and that those false allegations and denials were, in the words of witnesses, often being used to either stall legal proceedings or strengthen custody outcomes in favour of one or other of the parents.

As law makers, we have an obligation to take any allegation of family violence seriously and ensure that these allegations are dealt with fairly, effectively and expeditiously. Unfortunately, this is not the case at present. Allegations as serious as these should not be allowed to hang around indefinitely. A more effective process is needed so that the facts can be established speedily, otherwise family members can be left exposed to the risk of violence or, alternatively, the reputations of decent people can be seriously sullied.

Coordinating the approach to cases of violence between Commonwealth, state and child protection agencies is, in my view, critical to the overhaul of the family law system contemplated in this bill. I am pleased to see that the Family Law Council will give this matter further serious attention and that the Australian Institute of Family Studies will do research into this important area. I trust that the overhaul of the family law system as proposed in the bill and the amendments which will be debated will lead to better outcomes for children, their parents and their grandparents. We cannot legislate for decent human behaviour, but we can legislate for a better system that is fairer, more responsive, more affordable, more accessible and less adversarial. If that is what we achieve, then we have served our community well. (Time expired).

Kym Richardson (Kingston, Liberal Party) Share this | Link to this | Hansard source

I rise today in support of the Family Law Amendment (Shared Parental Responsibility) Bill 2005. This bill forms an integral part of the Howard government’s family law reforms, which aim at creating a much more accessible family law system which encourages the parties to a separation to, where possible, resolve their dispute outside a court. Our reforms also aim at ensuring that at all times parents remember the welfare of their children and ensure that that welfare is paramount in any decisions made which impact on their future.

As a former police officer, I have seen first-hand the heartache, emotions and hardships affecting not only the children but the parents of a broken marriage. When I was 13 years of age, my parents broke up. After moving back and forth to the family home, with seven different addresses over a three-year period, I can assure you that the emotional roller-coaster was quite one for me. Fortunately for me, my mum was a guiding light. She provided unbelievably for my older brother and sister and me, very regularly to the detriment of herself. I was able to visit and see my father, now passed away, as often as I liked, which was a key element in me staying on the right track. And here I am today.

It is a privilege to speak on this bill for and on behalf of the electorate of Kingston. This bill in particular is aimed at promoting the right of children to know both of their parents. This is a right which cannot be underestimated. In years gone by, when the divorce rate in this nation was much lower, the right of Australian children to know both their parents went without saying. But what also went without saying was the benefit that dual parenting had on children.

Under the Family Law Act, as it currently stands, courts are required to put the best interests of the children first when considering custody arrangements. What I simply cannot understand, therefore, is how it is possible, except in situations where a child is at risk—I reiterate: except in situations where a child is at risk—for courts not to enforce meaningful access arrangements which facilitate strong relationships between the child and both of its parents. How can a relationship between a child and both of its parents not be in the absolute best interests of the child? I am not talking about token visits every second weekend and a couple of weeks during school holidays. The most meaningful relationships with children are formed during the difficulties they encounter in every day life: watching them do their homework and helping them, listening to how their day went at school, watching them play sport, and being a part of their growing up. A whole generation of parents is going through parenthood without ever having been afforded the opportunity to do those things, which means a whole generation of children is missing out on a meaningful relationship with one of their parents.

There is no doubt that relationships are difficult, even more so when there are children involved. The breakdown of relationships in these circumstances is devastating to all of the parties involved. This legislation is about making the law that little bit fairer. At the end of the day, no amount of legislation will stop parties to a failed relationship feeling hurt and angry and, in some cases—sadly—using the children of that relationship to hurt the other party. All we can do as legislators is to make the basis for those situations as fair as possible.

There has been no major reform to the Family Law Act since its inception in 1975. Over the past 30 years the way family breakdown is viewed and the level of family breakdown in the community have changed considerably, but this is the first time we have seen amendments to the legislation to make sure it adequately reflects the needs of separating parents and their vulnerable children in a new era. Schedule 2 of this bill strengthens the powers contained within the Family Law Act to deal with breaches of court orders. I have spoken to so many constituents who have expressed the view that the changes we make to ensure parents’ access to their children are irrelevant if we do not also strengthen the enforceability. I have met so many constituents in my office who have shown me a court order which affords them the right to have access to their children—for example, every second weekend—but tell me it has been months since they have seen their children. When I have asked these parents why they have not returned to the Family Court, they have invariably told me that the court has very little power to do anything other than to pass out a slap on the wrist. Because we support the right of children to know both of their parents, not just in theory but in practice, we include in this bill the amendment contained in schedule 2, which gives the court a much wider range of powers to deal with these breaches. These include the ability to impose cost orders, bonds, make-up time and compensation.

Schedule 3 of the bill contains changes to court procedures to make the process less adversarial. The traditional adversarial system, which pits each party against the other in a court of law, is quite simply not appropriate when we are dealing with children and a family breakdown. We must encourage parties wherever possible to resolve their differences in a cooperative manner which may enable an amicable relationship between parents throughout their children’s lives. The changes contained in schedule 3 are aimed at achieving just that. Schedule 4 ensures that separating and divorcing parents have access to counselling and dispute resolution services. This further supports the government’s policy of ensuring the availability of services that assist parents to resolve their disputes in an amicable fashion.

Schedules 5 and 6 implement recommendations of the Family Law Council to clarify the role of independent children’s lawyers as best interest advocates and to make the relationship between parenting orders and family violence orders clearer and easier to understand. Schedule 8 removes the terms ‘residence’ and ‘contact’ and replaces them with the term ‘parenting orders’, which emphasises the need to make the system more family focused.

More than one million Australian children have a parent living elsewhere. Even sadder than that is the fact that one in four never sees one parent or only sees them once a year. We cannot simply blame this sad statistic on the stereotype of the mum and dad who do not care about their parental role, which we so often hear about. With a number that large, you have to recognise that the longstanding failures in the system are contributing to the heartache; it is not just the stereotyping. This is a difficult problem. Any legislative arrangement which seeks to regulate the breakdown of a relationship will be a challenging one to reform, but this government does not shy away from the difficult problems, and it has done and will continue to do all that it can to assist families, especially children, in what are difficult times.

This bill is just one more step in our policy of family law reform. We recognise that the system is fundamentally flawed. Today with this bill we take another step towards fixing the system, along with the introduction of a national network of family relationship centres, which I lobbied the Attorney-General and the members of the cabinet very hard for. Fortunately for Kingston we have been and will be successful. There is also the raft of family law amendments that have already been passed by this parliament. We seek to make family breakdowns something which is governed by a fair and equitable system and we seek to make them something which is in decline.

What is more, this government has more to come. We will implement across-the-board reforms to the child support system in this country and we will continue to implement changes which seek to resolve disputes associated with family breakdown in an amicable way before they reach the courtroom. Never in Australia’s history have we seen such a high level of family breakdown, and never in my history have I seen such animosity and genuine hatred between separating parents who at some point loved each other, created a child and brought a child into the world. These children are our future, and we cannot afford to experiment on them with a system that risks not affording them the right to develop a meaningful relationship with both their parents. We cannot know today what the impact of a failing family law system will be on our children and grandchildren. I for one would rather not find out. For that reason, I am a huge supporter of this government’s attempts to fix the system. For that reason, I commend the bill to the House.

Julie Owens (Parramatta, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Family Law Amendment (Shared Parental Responsibility) Bill 2005, a bill which we on this side of parliament welcome, although not without some reservations. The bill makes substantial reforms to the Family Law Act, many of them welcomed not just by people on this side of the House but by the many people who gave evidence to the committee.

The bill reforms the act by introducing a rebuttable presumption of shared parental responsibility. It requires a court to consider equal, significant and substantial shared time with both parents. It introduces compulsory mediation before litigation, with limited exceptions. It introduces less adversarial court processes for cases involving children, promotes parenting plans as agreed between parents without lawyers, provides the legislative basis for a major increase in family relationship services through the creation of 65 family relationship centres and makes a number of other changes, including new penalties for noncompliance with orders, vexatious complaints and false allegations of domestic violence.

We are pleased to see that this government has gone some way towards addressing the concerns over family law which Labor has raised over the past years, particularly in its contribution to the Every picture tells a story report—in particular, the increased emphasis on parental responsibilities in this draft of the bill and the emphasis on the rights of children following a family breakdown. We are pleased to see the government support Labor’s push for these important elements that are now included in the bill.

Labor believes that the reform package as a whole has a lot of positives, including the shift away from adversarial litigation over children and the $400 million injection into support services, including the establishment of family relationship centres, which could have benefits for separating and separated families.

Over the past few years, I have met many people in my electorate of Parramatta who have spoken to me with rage and grief about their enormous difficulties and hardships faced under the current system. Those people include both men and women, each suffering after the break-up of their families and struggling with developing new relationships that include both partners and their children. They talk about the protracted, burdensome, costly nature of the legal system; the unpredictability of court delivered outcomes under this adversarial system that we currently have; the disempowerment of the parties under the court system; and the huge financial and emotional cost which court proceedings take on parents and their children at the most difficult and volatile point of their lives. I have seen first-hand how much damage that adversarial system can wreak on both parties as over a number of years they strive to find the worst elements in each other to bolster their case in court. What both children and their parents need at that most volatile point of their lives is certainty, safety and security.

Whether the Howard government can truly deliver on the implementation of these reforms and provide substantive and long-lasting reforms is highly questionable given its past and ongoing politicising of one of the centrepieces of the bill, the family relationship centres. It is a centrepiece because mediation under this bill becomes compulsory—three hours free mediation at the family resource centres before a couple can go to court. I am not convinced that three hours will be enough in many cases, and there are many important questions that remain unanswered regarding the quality of the service—for example, what level of professional accreditation and/or training will be required of staff, how will the government ensure high-quality and impartial advice is given to families, how will the centres deal with cases involving violence, and what training will their staff have in dealing with cases of domestic violence? Will they be placed in the areas of most need or areas of most electoral benefit to the coalition government?

Other questions remain unanswered regarding the operation and assessment of the family relationship centres themselves, such as the following. Will there be waiting lists? Of what duration? Will people waiting for their three hours of free mediation be forced to wait several months or pay for the services elsewhere? How will the performance of the family relationship centres be assessed? The government policy claims to measure the performance of the centres simply on throughput rather than quality of the service provided. That could make it impossible for cases to avoid being churned through—more like a sausage factory than a high-quality service. I say this knowing that at this stage we still have not seen the detail for the setting up and the management of the family relationship centres, yet we are considering them in this bill tonight. We have seen in the last months the breakdown of the migrant settlement services and the Job Network services, both set up on similar models to that of the family relationship centres. This also raises the issue of whether we will see effective delivery of the $400 million program outlined in this bill without a blueprint in place at this time in this complex and delicate area of law.

The government has also created a dangerous conflict of interest at the heart of these centres by tying funding to the number of people who are seen rather than the quality of the service. The performance agreements are based on the quantity of parenting agreements made rather than on the quality—funding by a churn rate rather than by outcomes or, if you like, outputs rather than outcomes. We are concerned on this side of the House that with this kind of performance agreement in place we might not see the quality of service that our families need immediately. If the quality of service is not there upfront, considerable damage can be done in the long term. We still do not have enough information on how these family resource centres will be overseen by the government.

The government has also clearly compromised its ability to create an effective dispute resolution system by politicising the process. A panel of marginal seat Liberal MPs was appointed to oversee the selection and performance criteria of the family relationship centres. Appointing a political panel to decide these selection criteria, including performance criteria and location, smacks a little of pork-barrelling. It is no great coincidence in this pork-barrelling exercise that six of the eight committee members are in marginal seats.

The consequences of missing out seats, including my own seat of Parramatta, could mean that a parent may have to make a lengthy trip to the nearest family relationship centre—for people in my area, as far as Penrith—for the compulsory mediation and make onerous child-care and travel arrangements and pay associated costs. This is in place of the current convenience of being able to choose to attend mediation in the Family Court down the road. Such problems resulting from the potential commercialisation of the family law system through the setting up of the new family relationship centres need to be addressed now and not as an ad hoc and retrospective measure when it may be too late for many separated families and the damage has already been inflicted.

We also need greater clarity now. The government has promised three free hours of counselling for all separated couples using family relationship centres, but this is not enshrined in the legislation and we may not be able to rely on this at a later time. If a government later on decides that that mediation is not free then families who are already struggling with having to set up two households under extreme financial difficulties may have to pay for this service further down the track. Labor is also cautious of potential dangers which could arise from privatisation and the profit imperative of the family relationship centres, particularly given the recent reports about migrant settlement services and the Job Network operating under similar kinds of guidelines.

We also have some concern about domestic violence. The government’s recent actions in ordering a new inquiry into speeding up violence cases in the Family Court is welcome, but it does call into question its past refusal to address Labor’s concerns regarding the violence provisions of this bill. When we look at the violence provisions of the bill, we see that the Howard government is once again regulating for the worst case scenarios—those very few where people bring false allegations of violence.

Labor is calling for the deletion of the new definition of family violence in this bill, which requires the victim to prove that they reasonably fear or are reasonably apprehensive about their personal wellbeing or safety. A potential problem which arises from this objective test is that it will not involve a consideration of the personal circumstances of the victim, such as a history of violence or abuse, which might make a person more inclined to feel fear in circumstances where another person might not. It is unreasonable to require a person to attend compulsory mediation with someone they fear, whether or not that fear is reasonable. Fear puts the parties in unequal bargaining positions, which risks creating unfair outcomes. The result of such mediation must be questionable in these circumstances.

Labor calls for the deletion of the word ‘reasonably’ and a move back to the current definition as well as the amendment of the definition of violence so it includes circumstances in which a child witnesses violence or is exposed to violence. We also suggest that the government look at the state model, which defines domestic violence by the actions of the perpetrator rather than of the victim of those actions. In other words, domestic violence relates to the actions that one person commits against another and not necessarily whether or not the victim of those actions feels or could reasonably feel fear. Labor also calls for a provision demanding accreditation quality standards for the family relationship centres before dispute resolution becomes compulsory, especially with qualifications regarding screening for and handling of violence.

Labor is also looking for the deletion of the provision concerning cost penalties for false allegations of violence. Evidence suggests that the underreporting of family violence is a much bigger problem than false allegations and that these cost orders may dissuade people from raising genuine concerns about violence. The provision would introduce a cost penalty against people who knowingly make false allegations. The provision requires that a court must order a party to pay some or all of the legal costs of the other party if it is reasonably satisfied that they knowingly made a false allegation or statement.

There is a concern that punishing people who make false allegations of violence—although that is absolutely justified—may dissuade those who have genuine concerns about violence from raising them. Family violence can be notoriously difficult to prove and people might feel that it is not worth the risk that they will not be able to substantiate their allegations and thus face a penalty. Evidence suggests that the underreporting of family violence is a much bigger problem than false allegations. This section of the bill could have the effect of capturing many innocents in its net and punishing the true victims of family violence, who will be too scared to speak up because of possible cost penalties and related fears. The realities of underreporting violence are being ignored in favour of low context policies which assume that everyone can be treated the same, in effect punishing the many because of the few isolated cases where false allegations of violence are made.

But there is substantial good in this bill. We welcome the move towards reducing litigation and the focus on family dispute resolution through non-court means. However, if the government imposes on people the obligation by introducing compulsory family dispute resolution before they are able to commence court litigation, it needs to provide the means to implement this effectively and fairly. The government has said that the first three hours of mediation will be free. However, this is not yet found in the bill. It is not found in the bill that that mediation will be free indefinitely. Labor calls for an amendment inserting a provision guaranteeing that three hours free consultation so that the compulsory nature of family dispute resolution is tied to a government promise that this will be available and free in the future.

Also, the new requirement that all applicants for parenting orders attend family dispute resolution sessions and that the applicant must provide a certificate which says that the applicant has attended or tried to attend mediation, and says whether or not in the opinion of the practitioner both parties made a genuine effort to resolve the issues in the dispute, creates some difficulties. Labor has serious concerns about how certification of non-genuine participation might work in practice—ranging from, for example, the opinion of a single practitioner, lack of standards about meaning of ‘a genuine effort’, quality control mechanisms and uncertainties surrounding the effectiveness or otherwise about screening processes for cases involving family violence. A person may appear to be participating reluctantly not because they are obstructive but because they feel intimidated. Therefore, that section may become a backdoor way of turning the Family Court into a costs jurisdiction. What needs to be recognised and enshrined in this legislation is that each relationship is complex and that the government cannot and should not always prescribe answers for one size fits all. In certain instances the court will remain the best realm to determine what is in the best interests of the child.

We on this side of the House are glad that the government has moved when drafting this bill some way from its past focus on the rights of parents towards a greater recognition of parental responsibility and the best interests of the child being the paramount consideration when determining parenting disputes. The new section 60CC comes directly from Labor’s suggestions. It recognises that parenting is a two-way street, that parenting rights come with parental responsibilities. Labor has called for explicit consideration of how a parent fulfils obligations to the child in considering custody arrangements in the court. Labor has been strong in calling for a two-way street.

In the original exposure draft the government introduced the new requirement in section 60CC to consider the extent to which a parent has fulfilled or failed to fulfil his or her responsibilities as a parent, including whether a parent has taken or failed to take the opportunities to participate in making decisions about major long-term issues, whether the parent has spent time with the child and communicated with the child, the extent to which a parent facilitates the other parent taking up these opportunities and the extent to which a parent fulfils or fails to fulfil the obligations to maintain the child. They are excellent changes. They ensure that a parent who really is using the child to bludgeon the other parent will be assessed on their capacity as a parent and their relationship with the child in any further claims that they make.

We are also pleased with the changes to the test for the best interests of the child. The new bill, the bill we are considering tonight, has changed considerably from the earlier drafts, and it introduces a hierarchy of factors with primary considerations and additional considerations. The primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from abuse, neglect or violence. These are also excellent changes.

Labor are positive, on the whole, about the government’s attempts in this bill to make serious reforms to family law, but we believe there are still some issues that need to be addressed and we have addressed those in our second reading amendment. But on the whole, it is a great change, it is a great step forward for parents seeking to raise their children apart, and we commend the bill.

Kay Hull (Riverina, National Party) Share this | Link to this | Hansard source

It is with great pleasure that I rise this evening to support the Family Law Amendment (Shared Parental Responsibility) Bill 2005 in its entirety. I welcome my colleague Cameron Thompson, the member for Blair, who is sitting next to me. He played an extremely valuable and important role and gave an enormous amount of time, energy and effort to assist the House of Representatives Standing Committee on Family and Community Affairs to come to a bipartisan agreement. That committee was chaired by me. The deputy chair was Mrs Julia Irwin. The other members were the Hon. Alan Cadman, Mrs Trish Draper, Mr Peter Dutton, Ms Jennie George, Mr Chris Pearce, Mr Harry Quick, Mr Cameron Thompson and, for a short time, the Hon. Roger Price and the Hon. Graham Edwards.

The committee was responsible for the bipartisan report Every picture tells a story: inquiry into child custody arrangements in the event of family separation. It was the first real and honest appraisal of the issues confronting families across Australia not only in family separation but also in child support. As my very learned colleague next to me would attest, we attended many hearings across Australia and heard of an extreme amount of pain and anguish in all facets of family breakdown. In the initial stages of this inquiry, there were several thoughts of and maybe a few attempts at undermining the inquiry, with the thought that it could not succeed. However, after the first committee hearing, with the pain and anguish of the people who appeared before us, it soon became very apparent that we had a committee that would work diligently together in order to achieve an outcome that was in the best interests of the children of Australia. That is what we were able to achieve, and that needs to be clearly recognised in this debate.

As the debate has gone on, I have heard the excellent work, the enormous time and effort spent and of the genuine intentions of members of the Labor Party on the committee—I speak of Ms George, Mr Price, Mr Quick and Mrs Irwin, the deputy chair—being undermined time and time again. What I am seeing here is the decision of the shadow Attorney-General to try to take us back to before Every picture tells a story. I find that absolutely unforgivable. There is an understanding across Australia from parents, whether they like this system or not, that the government and the opposition agreed that the system as it currently stands is not acceptable to any person in Australia. What we have now is a process of undermining the very good work of both the opposition and the government in coming to a very sensible bipartisan report. Everybody put their signature on it; everybody recognised their very important role in this. Now we see it being undermined. If you are going to put very good, very diligent, articulate and extremely clever members on committees and then simply turn around and not accept what they have come to agree on, it is just a mindless waste of time.

I have continued with this process simply because, once you hear the pain and anguish of the Australian people and once you experience and witness the despair and confusion of Australian children, you cannot let this go. You know that this is our one and only opportunity to make a difference in those children’s lives. Too many of the children who came before us have suffered under laws under governments of both political persuasions that have not been conducive to them knowing and experiencing, all things being equal, love, care and nurturing from both mother and father after parental separation. So when I look at some of the issues raised and the amendments suggested by the shadow Attorney-General it seems obvious to me that she is not a sportswoman, because if you play sport you get to the position where you recognise that finally the umpire’s decision is the way it is.

On this committee that produced the report Every picture tells a story, there was bipartisan support and a bipartisan result, which we are all very proud of because it was a very difficult inquiry. Then we moved into the Standing Committee on Legal and Constitutional Affairs process and went through the painstakingly time-consuming consideration of the Attorney-General’s response to Every picture tells a story. We ended up with the majority of that committee also putting an enormous amount of effort, energy and understanding into the whole process. And the majority of that committee recognised that what we were doing was the right thing.

But here we have the shadow Attorney-General wanting to take us back to the old days. In essence, the amendments that the shadow Attorney-General has put up would mean that nothing would change. I simply cannot accept that when we have put in this enormous amount of effort and when families across Australia are waiting for this report and for these changes to be put into legislation—as I said, not because everyone agrees with what we are saying but because everyone knows that what we currently have is not acceptable.

As Chair of the House of Representatives Standing Committee on Family and Community Affairs I saw great pain and despair; they were presented to me as chair and to all of the other members of that committee during our four-month inquiry into the issue. Ever since that committee reported, my fellow committee members from both sides and I have been inundated with the stories and experiences of mothers, fathers, grandparents, other family members and, most importantly, children who have gone through marriage and family breakdowns. Some of those stories have caused us to shed tears, sharing the pain of families around the nation. By the end of the inquiry everybody had determined that they were going to see these changes through. It was bipartisan: everybody determined that they were going to see these changes implemented, changes that will assist families and ensure that the best interests of the children are of paramount concern—not the best interests of a parent, of a father or a mother, but the best interests of the children.

What we have here is a bill that amends the Family Law Act 1975 to implement significant recommendations from the Every picture tells a story report that were backed up and supported by the legal and constitutional affairs committee’s response to the minister’s response. I mean, how much consultation can you actually have? We have a report, we have a response to the report and then we have an inquiry on the response, and then we have a response to the inquiry on the response to the report. How many reports do you need to get validation that people expect and want change? They want these changes. The shadow Attorney-General and, obviously, some of the other speakers in the House that I have heard during this debate have not understood the real intent behind these changes.

As I said, the Standing Committee on Legal and Constitutional Affairs undertook to accommodate and respond to the shadow Attorney-General, as much as they could possibly do. I recall—it could not be a privileges issue to mention this—asking why we should accommodate these changes if there was going to be a dissenting report regardless of how much the committee members had worked together to try to achieve a unanimous and bipartisan outcome from the legal and constitutional affairs committee.

Today, not only have we seen these great family law changes being debated, but we have also seen the announcement of the child support changes at a press conference. The child support changes today have been shared. Here we have some real outcomes that every person, from the opposition and the government, on the committee that put together Every picture tells a story fought hard for, and has stayed true to, to the very end. We have child support changes which are going to come into place in three tranches, with the final one not coming into play until 1 July 2008.

At first I was a little concerned because I know that there are a lot of families out there who would like to see these child support changes implemented. That is not because they believe that everyone will be a winner; it has not been promoted that everyone will be a winner—there will be as many losers as there are winners. But we will have a scientific analysis and formula that clearly denotes why you are paying this amount of money for your children. It is the one thing that we do not have now—an answer to a question like: ‘Why is that child over there worth $5 or less a week and this child over here worth $350 a week?’ Nobody can understand that, and it creates an enormous amount of angst and concern amongst couples that have separated, and you can understand why that happens.

In essence, an opposition and government committee agreed to come together for the interests of Australian children. The committee worked tirelessly to ensure that that came about. They came up with a very good report and had the follow-up report. They are now witnessing the child support changes that we agreed on. Patrick Parkinson and his team did the child support review in the interests of children; fantastic work from him and his team. All of the affected players represented on that team recognised that they had to put their differences aside and start to get on with one another to achieve an outcome that was fair and reasonable. Today we have a great package delivered to all committee members, those on the opposition benches and those on the government side as well. They deserve this, because they worked hard and they have stayed true to the cause. So it is very disappointing to come in and see this raft of amendments that take us back to nowhere-land. This bill promotes the rights of children. Do not forget that. This bill’s intention is clearly to look after the rights of the child, and those rights include the right to know both parents.

The bill encourages couples who are separated to resolve parenting arrangements outside of the court system. I have to thank the Attorney-General, because it is difficult, when you have legal training, a legal background and you have been in this position for a long time, to recognise that there is a definite need to try to resolve things outside the legal system, all things being equal.

We know—nobody denies—that some of these people are simply not going to be able to resolve their issues outside of the legal system; but we are going to provide them with the opportunity. When the family relationship centres are rolled out, they will have key performance indicators. They are going to provide people with the best chance to be able to resolve these issues out of a courtroom. That is the most sensible and the most productive outcome for the children of Australia.

This bill has major changes in it. There will be a new presumption of equal shared parental responsibility. I am sticking with equal shared parental responsibility; I am not moving from it. And I do not think my colleague the member for Blair will move from that either. It is so important to have those words in there. I see one of these amendments tries to look at changing that wording. This new presumption of equal shared parental responsibility will enable both parents to have an equal role in making decisions about major long-term issues for the benefit of their children—again, all things being equal.

We understand that there is violence, domestic violence, that takes place in homes across Australia, but the majority of families are in a position of being able to reconcile and resolve their differences if they are given the opportunity. That is what this bill is doing: it is providing the opportunity through a raft of changes, including family relationship centres, a new child support system, some very solid backup support in the Child Support Agency and a whole new look at the way the agency performs—$850 million worth of changes, in fact. These are long overdue but very welcome.

There is also a requirement for the court to consider whether children spending equal time with both parents is practicable and in the best interests of the child. If equal time is not appropriate, the court must consider the substantial and what I believe should be the significant time. Parenting advisers dealing with parents in dispute resolution outside the courts must also raise these issues with both parties. But not only do we have parenting advisers having to raise these issues; we now have family law court judges having to do the same—something which is long overdue.

I want to take the time to pay tribute to the Federal Magistrates Court and put in a plug for the court. In my observation—and I have done a huge amount of observation of these cases in the Parramatta family law court, the Sydney family law court, the Cairns family law court and the Federal Magistrates Court—the Federal Magistrates Court is doing a mighty job already of taking on the interests that the old committee raised in Every picture tells a story and is already putting these into place and delivering very good outcomes. But what it needs is more funding. I would like to see all of these cases going through the Federal Magistrates Court where possible, because I think it is the perfect body to be able to really deliver what the committee intended in the first place, which is to have a tribunal. If you are not going to have a tribunal, the very next best thing is the Federal Magistrates Court. Let us get out of the family law courts; let us get into us all taking responsibility for the outcomes for our children. It is as much the courts’ responsibility to ensure that children have fairness and equity in respect of the way in which they are able to meet and deal with their parents after separation.

The primary factor when deciding what is in the best interests of the child will be the right of a child to know their parents and to be protected from harm. This is something that we are very strong on. Every committee member stated their case. They were very concerned about domestic violence and protecting children from harm. But you would not think that was the case when you hear some of the speeches. Every member of the Legal and Constitutional Affairs Committee was absolutely hell bent on ensuring that no Australian child should ever be put in danger. So, lest there be any thought that all of these committees and all these inquiries have not focused and centred on family violence and the possibility of family violence and on the best interests of children and partners in cases of family violence, if you are thinking at all that there was no credence paid to this issue, let me tell you that you are wrong. So many hours were taken up in looking at, discussing and raising concerns about how we were protecting the children of Australia.

Basically, what we have here is an amendment to the existing definition of ‘family violence’ to make it clear that any fear of apprehension of violence must be reasonable, because not only do we have real family violence, we also have allegations—whether or not we want to agree or believe that we do—of family violence. What we cannot have is someone abusing the system by making allegations of abuse, which then leaves someone else, who is exposed to family violence, exposed without assistance. With many domestic violence orders, that is what occurs—people who really do experience family violence are left exposed and in a very precarious situation.

I support the bill before the House. I cannot applaud the Attorney-General enough, because I think he has picked up and run with the sentiments of all these committees. (Time expired)

Cameron Thompson (Blair, Liberal Party) Share this | Link to this | Hansard source

Having heard from the person whose expert chairmanship helped generate this whole issue, I move:

That the debate be now adjourned.

Question agreed to.