Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Labor welcomes the introduction of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 into the parliament and supports the overwhelming majority of the provisions in it. The gestation period of the bill has been over three years and much of the groundwork was laid by bipartisan committee work in this House. Family law is not and should not be about a political battle between the Liberal and Labor parties or a tug of war between mums and dads. Family law is about providing for and protecting children. It is children’s interests that we are tasked to take care of when we are debating this bill. We must not forget that the children are the very reason—really the sole reason—that the parliament is involved at all in intervening in this tricky area of family relationships.

The public interest, the debate and the long lead time for these particular family law changes are also indicative of the complex and difficult area that family law is and the determination that I think all of us in this House share in trying to make these laws as good as we can.

Of course society has changed over 30 years and we need to make sure that our laws reflect this. We also need to remember in this area of law, more so than in many others, that the law cannot fix the pain and disappointment that many people inevitably feel when their relationships break down. We cannot turn family law into a proxy debate about a wide range of other social problems. It is just unrealistic and destined to disappoint if we pretend that family law, no matter how we change it, will make people forget the hurt they feel when their families break up.

It is easy to see how the media and certain lobby groups are attracted to the sensational ‘battle of the sexes’ rhetoric. But it is a trap that politicians should avoid, because family law is about something much more important than parents’ rights: it is about children. Given this, we should be more concerned about parents’ responsibilities than parents’ rights, because that is what will benefit children at the end of the day.

In this speech I am going to take the time to carefully set out Labor’s position on family law. I intend to go through the many parts of the bill we support, to highlight and make suggestions for those that we think can be improved and to express our reservations about how some aspects may work when implemented. We support the measures that encourage shared parenting. It is a positive development that more and more parents, mums and dads, realise the value of staying in active contact with their children after separation. In particular, the last decade has seen a great change in the numbers of fathers wanting to play a significant role in the care of their children, and it is appropriate that the law recognises that patterns of parenting are changing. At the same time, mums are still providing the majority of care for children in the community. I guess the point of raising both of these facts is that it is important that we realise that all families are different. This means that we have to be very careful about prescribing one-size-fits-all solutions in family law.

We also support the measures in this bill that are trying to simplify court processes involving children and to make them less adversarial, and the measures to solve as many matters as possible outside the courts. This picks up the process that is being trialled in the Sydney and Parramatta registries with respect to the court processes. The Family Court is undertaking that pilot project as we speak. We note that the final assessment of that trial has not yet been completed and we do hope that the government will commit to reviewing these changes, if necessary, in the light of that report when it is provided.

Labor supports changes that will promote family dispute resolution outside the courtroom. This has the potential to save a lot of time, money and frustration. This bill is part of a package that includes a significant new government contribution to the funding of family relationship services. It includes $200 million towards increased funding of services under the existing family relationship services program. Labor enthusiastically welcomed this new money when it was announced. Indeed, we had been arguing for a number of years that these services had been sorely neglected by the Howard government.

We also welcome the plan to establish a network of 65 family relationship centres. Well managed and properly resourced, this network could provide an invaluable addition to the family law system—a shopfront and entry point for advice, referral, counselling and mediation services. But being well managed and resourced is the key, and we will be closely watching these services to make sure they are well managed and resourced—but  more of this later.

So it is clear that many of the good ideas in this bill are well supported by Labor. And this is no surprise, because many of them came out of the bipartisan work of the House of Representatives Standing Committee on Family and Community Affairs several years ago, which produced the important Every picture tells a story report. Labor is proud of the contribution that our colleagues made to that report. Further, a number of aspects of this bill we are debating today come from a later review conducted by the House of Representatives Standing Committee on Legal and Constitutional Affairs, which scrutinised an earlier exposure draft of this bill. I will come later to a number of recommendations made by that committee.

At this point, though, I want to note that this bill now includes two important provisions that stem from my dissenting report in that LACA review, which will temper the rights focus of the earlier draft of the bill, with two new important responsibilities for parents. Section 60CC, which outlines the best interests of the child test, will now require the court to consider the extent to which each parent has taken up opportunities to spend time with and communicate with the child, be involved in major life decisions that affect the child and paid maintenance for that child. Section 70NCA will allow costs to be awarded against parents who make repeated nuisance claims that the other parent has breached parenting orders. Yes, they certainly must have the right to complain, but now they also have a responsibility not to abuse that right. These are tremendously important new provisions which I believe should help make sure the balance of the Family Law Act when these changes have gone through is right.

My concern, which I have raised in many other places, including in my dissenting report, is that if we focus too much on rights we risk turning a blind eye to irresponsibility. The law cannot promote rights without responsibilities. When you do so, you run the risk that people will abuse those rights. While the vast majority of non-resident parents—as well as the majority of resident parents—take their responsibilities seriously, we believe the exposure draft would have rewarded those who do not. In the process it would have created huge problems in those situations where a non-resident parent is more concerned with controlling their ex-partner’s lives than actually maintaining a meaningful involvement in their children’s lives. So these changes are important and welcome.

Having set out the areas in which there is agreement between the government and the Labor Party—and they do cover the main aspects of this bill—I will turn now to some of the concerns that Labor does have with this bill. Labor’s most significant concern is to make sure that this package protects people from family violence. We believe there are parts of this bill that could be better worded to afford greater protection, and we will be moving amendments accordingly. Labor believes that the issue of family violence has to be taken seriously; it cannot be brushed aside just because it is a difficult issue.

The first area for improvement of the bill involves recognising the way violence affects mediation and parenting plans. While resolution of disputes outside the courts is to be encouraged, we must be sure that these resolutions are genuinely made in the best interests of children, which means they must also be absolutely free of bullying, coercion and intimidation. If we are to make mediation compulsory and give new force to parenting plans agreed to without any professional or legal advice, we need new precautions to make sure that violence and fear are not influencing the agreements that are reached. Some of our amendments go directly to these issues. For example, we propose a cooling-off period for parenting plans and a clear rule that these plans are not valid if obtained under coercion or duress. On this latter point, I understand we have been advised today that the government will accept our amendment in respect of coercion and duress—and that is obviously welcome news.

There is a specific change proposed in the bill by the government which we believe could make matters significantly worse in the area of violence, and that is the planned change to the definition of ‘family violence’. It was only on Sunday that the government announced that the Australian Institute of Family Studies is going to undertake a research project into family violence and family law. But before the government even gets the results from this inquiry it wants to change the definition of violence, with next to no reasoning or basis for doing so. Certainly, this research is welcome and it will be important for us to get some good quality longitudinal research in this area. But it seems silly for the government to make the decision to move us from a subjective test to an objective test without any real basis for doing so. This, in fact, is a position that the Attorney originally had in his draft bill—a position on which he and I seemed to agree, but on which the members of the House of Representatives Standing Committee on Legal and Constitutional Affairs did not agree.

I must say that I do not think a rushed inquiry, in which a proposal was put forward to look for a better definition, should form the basis for making such a major change, the consequences of which have not been followed through. I am concerned that the proposal that requires a person to show that they had a ‘reasonable’ apprehension of violence is an unsatisfactory approach. Firstly, there is an implication that some forms of violence or threatening behaviour are acceptable as long as a ‘reasonable’ person would not feel afraid. This gets the courts into the very tricky business of deciding what conduct would scare a ‘reasonable’ person. I do not believe we should put the courts in this position, and parliament should be very clear that there is no such thing as acceptable violence.

Secondly, the definition does not provide scope to consider the particular circumstances of the victim—for example, a person who has previously been exposed to violence may be more sensitive and fearful in circumstances where another person might not. Thirdly, an objective definition is not at all helpful when we are dealing with the question of who should or should not attend mediation. When it comes to mediation, frankly, it does not really matter whether or not one person’s fear is reasonable. Even an unreasonable fear will affect the power balance between the parties. It is simply not fair for us to force people into mediation if they are absolutely terrified. That cannot be a legitimate participation in mediation. At the very least, Labor has a strong view that a subjective definition must apply for the purposes of the exception to compulsory mediation. As I have said, I think the Attorney and I agree on this issue. Our colleagues on the House of Representatives Standing Committee on Legal and Constitutional Affairs, on both sides of the House, did not agree, and they made a suggestion after the short inquiry. But I am fearful that the consequences of that proposal were not carefully considered.

There is, of course, another option between the objective and subjective definitions of violence. The style of definition that applies in the state laws on restraining orders actually defines the conduct which the law deems to be violent regardless of the effect it has on the victim. This may be a better approach, although I can see that it would also have some technical difficulties. It is my hope, given that a Senate committee has now been set up to look at this bill, that the committee will take some time to consider whether the Commonwealth should go down that road. If we are not sure, we should not change a longstanding definition of violence without understanding the consequences. The government has now announced a thorough review in this area by an independent research body. If we are not sure of the consequences of a change as significant as this, we should wait until we have the results of that inquiry.

Labor is also concerned about the provisions to impose costs orders for false allegations of violence. Labor understands that it must be devastating to be falsely accused of violence against your children or partner. However, it also needs to be acknowledged that the current evidence and research suggest that we have a much bigger problem in Australia with the under-reporting of domestic violence than with false allegations. This is the evidence that the House of Representatives Standing Committee on Legal and Constitutional Affairs heard from the Law Council, the Family Court and others. Given this, the last thing we want to do is create a disincentive for raising genuine concerns. Labor is worried that a costs penalty would send the wrong message to victims of violence, telling them that it is much safer to stay quiet than to risk a costs order against them if they cannot be 100 per cent confident that they can prove that the violence has occurred. Interestingly, this is another area in which the Attorney and I agree. It was the initial position put forward by the Attorney in the exposure draft. Labor stands ready to support the Attorney if and when he chooses to revert to his original position.

As an aside, I want to flag Labor’s concern about the increasing incidence of using costs within the family law jurisdiction each time we make changes to the law. We are concerned that we might, by a back door, be turning family law into a costs jurisdiction. That is, of course, a very serious change and we should tread very carefully.

There are a number of other proposed amendments that we have provided to the government which will be debated in the detailed debate on the third reading, including the definition of ‘exposing children to violence’ being included within the definition of ‘violence’. We intend to move those specific amendments on those issues in the committee stages and I hope that the government will consider adopting a number of those amendments when we do that.

As I already mentioned, the bill is going to introduce a new system of compulsory mediation with some limited exceptions. Labor supports this shift as it could help that category of cases in which separating couples have not been able to reach agreement on their own but are not so entrenched in their attitudes and disagreements as to require final orders from a court. Indeed, we can recognise that the adversarial nature of court proceedings can, of themselves, sometimes make reaching agreement even more difficult. In these cases, compulsory mediation before litigation could act as a useful circuit-breaker, before disputes escalate. However, compulsory mediation could carry some serious consequences if it is not implemented in the right way.

We want to express some caution about the changes and we would like to make sure that compulsory mediation will require the following conditions. Firstly, mediation has to be accessible if it is going to be effective. We welcome the government’s promise of three hours of free funding in each case. We are not confident it will be sufficient in all cases but we think it is important that the government has made that commitment. We want this to be a commitment that is actually in legislation as a precondition for compulsory mediation. We are concerned that if the government changes its mind in the future—if this becomes another ‘non-core’ promise of the Prime Minister—people will still be obliged to go to mediation but will not have the financial support that the government at this stage is prepared to provide. We cannot and should not put a new requirement in place for people to attend that mediation at their own expense, so adding to the costs of people who are going through family breakdown. We do not think that would make it cheaper. Of course that would make it more expensive. There is a specific amendment that people on both sides of this House can vote for to put that promise into law. We will be urging all members of the House to vote for that.

Secondly, for the implementation to work, staff must be well trained. I think all members of this House agree that cases involving family violence or entrenched conflict are not suitable for mediation and should be dealt with in a formal court setting. In practice, in order for us to get that right, we need to be confident that family relationship centre staff can recognise the signs of violence and entrenched conflict and understand how to make appropriate referrals. If mediators do not do this and try to force mediation in inappropriate circumstances, we may have some disastrous, even tragic, outcomes on our hands. Similarly—and acknowledging the complex emotional context of family separation—FRC staff need to be adequately trained in dealing with violent situations if they arise in the course of mediation.

Thirdly, we want to make sure that the government can assure us as to the quality of the services that will be provided. Training staff is going to be vital, but it will not be enough. The government must also ensure that the quality of mediation services are of a consistently high standard. I am alarmed that the government’s operational framework documents contain key performance indicators which seem to prioritise the quantity of parenting agreements reached, rather than the quality of services provided. We need to make sure that the incentives given to the centres are right. Too much focus on quantity could actually encourage staff to push people into agreements that are not sensible or appropriate, because staff are rewarded on the churn rate. We are talking about dealing with complex family relationships here, not sausage factories, and we should make sure that our assessments of the services are appropriate, so we will be watching the implementation closely. We are in the situation of debating this bill in the House without any accreditation details, without a complaints process being in place and without any information about how the new family relationship centres will actually be overseen by government.

Fourthly, it is important that the centres not pursue an ideological, political or religious agenda. These centres are going to be funded by government to provide services, not to promote their own agendas. We know that there are many views within the community on issues like relationships, divorce, parenting and so on. These are complex social issues, and I think our society benefits from hearing many different points of view. But government funded relationship services should not be used as vehicles for this sort of advocacy or for evangelising or social engineering. The Attorney has to take a personal interest in and responsibility for making sure that this does not happen. The centres must not discriminate. If these centres are to be accessible and available to all people, the government must ensure that they do not discriminate on the grounds of gender, ethnicity, religion, disability or socioeconomic disadvantage. We are trying to get put into law a number of these important guarantees that are in specific proposals that we have. Some of them are included in the second reading amendment that I will move in a moment.

At the end of the day it is important that the government understands that, while it has our support to go down this path, it needs to make sure that the implementation process is going to turn this into a real change that works for Australian families. We have some reasons to worry about how effectively the government will do this. In recent years the Howard government has developed a record of administrative incompetence—another sign that 10 years on the government is passing its use-by date. Only this month we have seen revelations of incompetence in two funding programs similar to the one proposed for the FRCs roll-out. Firstly, there was the scandalous mismanagement of the Job Network, which the government heralded as the model to be used for the family relationship centres. In that case, we have seen overpayments resulting from providers fudging their figures—another side effect of the narrow, quantity based performance indicators which are used by a government too lazy to put in place genuine quality assurance mechanisms. Secondly, we have seen in the media the issue of entities associated with the Hillsong Church overspending government grants on internal ‘administration’ costs, with little going to the Indigenous communities that the money was intended for. In this case, the Attorney’s own department was implicated, having failed to check properly on references.

So in the case of family relationship centres, we do have some reason to be cautious and concerned, so competent implementation—and we urge this—is going to be essential to the effective operation of the legislation that we are debating. For this reason, on the passage of this bill the opposition will closely watch the FRCs roll-out, and we expect the Attorney to be completely transparent about this process. He would be aware that I have made a freedom of information request for a number of documents that have not been provided at this stage. Their provision would help ensure that the process is transparent and not political. We need to make sure that he is held personally responsible if this system does fail. He cannot be allowed to ask us, while we are debating this bill, to trust him on its implementation and then not be held accountable for any problems that occur further down the track. I now move my second reading amendment, which is quite long as it does encompass a range of our concerns and a number of issues that other speakers on our side of this House will want to discuss during this debate:

That all words after “That” be omitted with a view to substituting the following words: “whilst not declining to give the bill a second reading, the House:

(1)    notes that the first priority of family law should be to promote and secure the best interests of children and that this requires a focus on:

             (a)    the responsibility of parents to care for, love and provide security to children

             (b)    the need to prevent children from being victims of, or exposed to, violence, abuse or neglect, and

             (c)    without compromising the above, the benefit to children of knowing and spending time with their parents;

(2)    notes that, despite this Bill, the Howard Government has made shared parenting before and after separation more difficult through its constant attacks on Australian families, such as the recent industrial relations changes and its failure to meet the chronic child care shortage;

(3)    notes the risk that the Government is creating false expectations that this Bill will create a right for parents spending equal time with their children, when the Bill does not do this, in many cases this would not be appropriate and it shouldn’t automatically be the starting point for negotiations;

(4)    notes that the Government has improved its Bill by adopting Labor’s ideas that:

             (a)    for parents intent on demanding parental ‘rights’,  the Court will consider the extent to which parents have exercised their responsibilities as parents -  recognising that parenting is a two-way street;

             (b)    strengthened compliance measures should be coupled with costs for nuisance complainants, so that the right to seek a remedy cannot be used irresponsibly;

(5)    notes that the effectiveness of these reforms will fundamentally depend on the implementation of the Family Relationship Centres program, so that these centres can provide appropriate advice, counselling and referral as well as dispute resolution services and calls on the Government to commit to:

             (a)    providing adequate resources to Family Relationship Services and Centres;

             (b)    regular reappraisal of needs and funding to ensure free services;

             (c)    requiring that Family Relationship Centres focus on quality advice, not simply quantity of parenting plans;

             (d)    equipping staff to detect the signs of family violence and child abuse and manage violent clients;

             (e)    ensuring that Family Relationship Centres do not discriminate on the basis of race, religion, age, disability, gender or socio-economic disadvantage and are not used to advocate or encourage any particular political or religious agenda;

              (f)    instituting a well-resourced and effective complaints process for people who have grievances with Family Relationship Centres or their staff;

(6)    demands that the Government immediately release accreditation and quality standards for Family Relationship Centres prior to mediation becoming compulsory;

(7)    notes that, while separating parents should be encouraged to settle their disputes without recourse to the Courts, litigation needs to be recognised and supported as a vital pathway for those cases involving family violence or abuse, entrenched conflict or intractable disputes;

(8)    notes that the Government needs to invest in and make public thorough, longitudinal research on:

             (a)    the consequences of family law reform;

             (b)    interaction between violence and family law; and

             (c)    the need for a broad ranging parliamentary inquiry on violence in the community;

(9)    notes that the Government should, in the near future, conduct a review of how these changes work in practice, with particular consideration of the following issues:

             (a)    the operation of the requirement to consult on ‘major long-term issues’  (compared to the original recommendation from the Every Picture Tells a Story report limited to location);

             (b)    the interaction of parenting plans and court orders:

             (c)    the need to review Schedule 3 as soon as the assessment report of the Family Court’s pilot of the Children’s Cases Program is available, given that these changes are being made before that pilot is completed and evaluated;

(10)  notes the Government’s failure to consider a National Commissioner for Children and Young People, who could provide a role developing expertise in supporting children in family law matters”.

With this long list of issues I could speak for days on the changes that Labor would like to see and the many areas in which the government is taking positive steps, but time is against us. I do want to issue a final note of concern that Labor has in this general area of family law, and that is that the government is creating some false expectations about how family law is going to work under this bill. Although the government agrees with Labor, the original committees and all the processes that have assessed this proposal from the beginning that a presumption of equal parenting time is not the way to go, it is sending very mixed messages.

One example of this is the change of the term ‘joint shared parental responsibility’ to ‘equal shared parental responsibility’—another one of those issues where the Attorney-General and I seem to have the same view but where the LACA committee has made a different recommendation. Responsibility for children is not a quantifiable thing that can be cut into two equal parts. Clearly what we are talking about is ‘joint’ responsibility: an obligation for parents—whether together or separated—to make decisions that affect their children together. Changing this term, as the bill proposes, is clearly intended to muddy the waters, with the naive hope that the equal time advocates will not realise that the government disagrees with them on this issue.

It may be that there are people in this House who think that we should just let this debate go through and not raise any concerns about this. But I am concerned that in family law—more so than in many other areas—false expectations have a consequence. Firstly, a lot of nonresident parents will only feel more frustrated when they realise that the government has not given them the change they thought they were getting. It worries me that it is not the government but the family relationship centres that will bear the brunt of this frustration, just as the Family Court did in its early days. Secondly, in the other direction, some victims of family violence may develop the false view that they cannot stop their abuser from having contact with their children. I am advised by some service providers in the sector that this is already happening, mostly involving women who, despite their fears and concerns, feel that new laws mean they will have to accept equal time.

Because we know that a large part of family law is about expectations and that the perception that the Family Court is biased against men affects the view that many men take into negotiations, the government needs to be particularly responsible about managing expectations and combating false perceptions. I worry that the Howard gove

Bob McMullan (Fraser, Australian Labor Party) Share this | Link to this | Hansard source

Is the amendment seconded?

Tanya Plibersek (Sydney, Australian Labor Party, Shadow Minister for Childcare) Share this | Link to this | Hansard source

I second the amendment and reserve my right to speak.

Wilson Tuckey (O'Connor, Liberal Party) Share this | Link to this | Hansard source

The history behind the Family Law Amendment (Shared Parental Responsibility) Bill 2005 goes back to the Murphy amendments to family law, a very dramatic affair which introduced an argument that the family courts should take into account all welfare payments before requiring any payment from the person then known as the non-custodial parent. As the cost of that escalated, we had the Howe legislation, which created the monster that is now known as the Child Support Agency and the idea of a set percentage of the income of non-custodial parents, as they were then known, for the support of children. Over time, that has been demonstrated to be impractical and grossly unfair.

These matters arose following the submission of a report by the House of Representatives Standing Committee on Family and Community Affairs. The committee was bipartisan and it set down a strong series of recommendations which were then passed on to government. There was a process thereafter which resulted in draft legislation—an exposure draft—being considered by the House of Representatives Standing Committee on Legal and Constitutional Affairs. Because the committee is a standing committee of the parliament, it is one on which both sides were again represented. Included in the membership were the member for Lowe, the member for Chifley, the member for Denison and, I believe, the member for Gellibrand. After considering the original report and the draft legislation, it put forward a report with 56 recommendations, 51 of which were accepted by the government. The committee reported in August 2005 and the government’s response was given in December 2005. It can hardly be said that the response was slow or delayed.

There was only one dissenting report, by the member for Gellibrand. As seems to be occurring in this place, a person, possibly with shadow ministerial responsibility, is jumping up and driving policy for the Labor Party at a time when other members of that party either hold an alternative point of view or have participated in a process to come to conclusions to enable this parliament collectively to resolve some quite tragic circumstances, including suicide, that have resulted from legislation well past its use-by date. Why is it that today, after those extensive processes over some years, the member for Gellibrand—on behalf of the Labor Party, as she claims, and in defiance of the recommendation supported by the member for Lowe, the member for Chifley and the member for Denison—now comes to the parliament and wants to rewrite the legislation in a significant fashion?

What are the recommendations of the member for Gellibrand—the amendments she wants this parliament to pass? She wants to rewrite the provisions relating to family violence. She wants to virtually re-create the situation where family violence could block out access to the non-custodial parent—a thing that has been done time and time again. The legislation is quite specific. The government reforms protect children from the risk of violence or abuse by making them a primary factor to be considered in child custody cases. We do not subscribe to the view of the provision being abused—as occurs, unfortunately, in family breakdown, where a particular parent will make unsubstantiated accusations of that nature—as a means to frighten the courts and others from that minor risk that might occur in those cases of any violence whatsoever. It is a tough issue; it has been addressed. At this stage of the game, after all the consideration that has been given to the clause, it is inappropriate that it should be changed by amendment in this House and in the climate of this House.

The member for Gellibrand wants to remove the prioritisation of a child’s right to know both parents and a child’s protection from family violence—a provision approved by the committee. She wants to change that notwithstanding that it has been through these previous processes. The member for Gellibrand wants to reject the change from joint shared parental responsibility—and she just repeated that—to equally shared parental responsibility. She wants to change the word ‘equal’.

That is exactly what these amendments are all about—equality between two parents who have decided to part ways, but in the interests of the children. As we all know, if the kids could take a vote, they would frequently prefer their parents to stay together. At that point in time that issue is beyond them. But in relation to the right of the parents to share in equal terms, the responsibility for the children should be one of the highest of the challenges.

The member for Gellibrand wants to remove the provision allowing cost orders against persons who make false accusations of family violence. How silly is that? Of course people should be discouraged from making false accusations and of course there must be some sort of evidence available if family violence is in fact a matter for consideration and, as we say, a primary factor in the removal of the opportunity for the other parent to have equal access to the children of that marriage.

The member for Gellibrand wants to remove the requirement for parents, before going to court, to first make a genuine effort to resolve their issues in mediation. She wants some guarantee that the funding will be there forever. No parliament can commit a future parliament. There is plenty of evidence of such arrangements being broken when those in opposition move to being in government. Nobody can bind a future parliament, so why ask for silly measures like that to be included to make a political point?

Above all, when can the Labor Party, the opposition, get its act together? I repeat that there has been a very significant process in arriving at this legislation today. The Standing Committee on Legal and Constitutional Affairs is a pretty logical place to send some draft exposure legislation. It is made up of people who have committed themselves. They typically have legal backgrounds. The chairman, Mr Slipper, whose electorate is Fisher, has a legal background—just like, I would imagine, most of the others. They went through it bit by bit. For all the hoo-ha we get about debating legislation in this place, the 20 minutes made available to us is pretty cursory. This is not the place where you get all the answers, unfortunately. That is why we have committees. That is why they have done their work. As I said, the committee put forward 56 recommendations, of which 51 have been accepted by the government and included in this legislation.

All of a sudden, after all of that, because the member for Gellibrand feels that she has some other constituency to which she wishes to respond—and please note that I did not say ‘respond to’—the fact of life is that she wants to rewrite the bill. I am highly critical of that. Her colleagues—whom she has defied, considering the hard work that they have put in—should have some complaint back in the caucus. It is not good enough and this is not the sort of legislation that should require a political response.

I might give the member for Gellibrand a bit of advice in her absence. She has not hung around for my advice. I have only been married for 47 years; I am no judge of these matters! By the way, what a statistical family mine is: of the four kids in my family, two are divorced and two are still married. I guess we have seen both sides of the argument in every respect. But you have to be very careful politically when you start to decide that you will support one sex against the other.

As I advised our party room today, my office is full of a lot of complaints from females. They are typically the mothers of non-custodial parents or the second wives of non-custodial parents. If you just want to think that this is a man-woman argument, you should be very careful. The fact of life is that this concerns legislation of years ago, put in by the Labor Party in response to previous legislation generated by the Labor Party. The reality is that the legislation was a failure. It has created a very arrogant organisation called the Child Support Agency and policies that will be addressed in this legislation—for instance, telling farmers in my electorate who have had three years of drought that the fact that they have not earned any money is not a matter for consideration. ‘You have the potential to make $100,000 a year on your farm, Mr Smith. That is what we will strike your contribution upon.’

Then there is the situation where there was a family with two houses on a farm and the wife of the person involved decided to pack up and go to town away from the extended family—the grandparents and others. I found it just unbelievable. The fellow apparently went to try and reconcile things and the next thing the police were out there taking his rifle away from the homestead. Knowing the family involved, I do not think there was violence of any description.

There is case after case where the existing legislation has failed people, failed children and been grossly unfair. As I said, I understand that suicides were virtually a weekly occurrence—and murder, and that is the most heartbreaking: when children’s lives were taken because of the frustration of parents wishing to take it out on the other party in the most horrible way.

Today we are assessing how we might fix that and put some justice into it so that there is proper access and people feel confident from the beginning. Why all of a sudden during the debate should the member for Gellibrand start to sling off about government administrative incompetence and attack the Hillsong Church? Why chuck those nasty little bits in on a matter of such great importance? After the due bipartisan processes that have occurred in this matter, today she asks for the legislation to be rewritten? It is wrong and it is silly. It is one person trying to pick up a constituency or give themselves some place in history. It should have been today that people in this parliament joined hands on this issue.

If I can detour just slightly for a moment, we should also be doing so on taxation. You do not need to be Albert Einstein to know what is wrong with the tax system and to identify the best responses. We should be able to have the capacity on both sides of this House to fix it. It should not be an issue of saying, ‘Can I surf to victory at the next election on some aspect of it?’

These are the big issues—families, taxation and the economy. They should not be—as they are—a situation where someone says, ‘I can gain political advantage if I go out and try to change this, if I go to some particular group and say, “I did my best for you.”’ We have been through that process. People from both sides of this parliament and the people I have quoted are amongst the most dedicated on this issue—the members for Denison, Chifley and Lowe. Why not take their advice and that of the coalition members and get on with the job?

It is in my mind important that this legislation passes without these amendments. But there are still government amendments to be considered, and I naturally support them. Let me in brief say this: this legislative package will cost the taxpayer some $397 million and probably more. It will be money well spent to achieve the reforms that we want. Schedule 1 recognises the need for a cooperative approach to parenting. Yes, if you want to go your individual ways for whatever reason, think about the kids. Cooperate, get together and do things. Under schedule 1:

... children have a right to have a meaningful relationship and know both their parents and ... parents continue to share responsibility for their children after they separate.

Might I say it is shared equally. It is no longer the case that we separate the sexes in employment, income or responsibility. I can point within my extended family to a housefather who has undertaken that role throughout the married life of that family with three children. In those circumstances, why is it that in past legislation and past legal practice we have differentiated? On schedule 2:

Schedule 2 contains a range of amendments to strengthen the existing enforcement regime in the Act. Breaches of court orders are a major source of conflict and distress to all parties ...

Of course people who are told by the courts, for instance, to give access to the other partner should obey that instruction and of course they should be penalised if they fail to do so. In fact, the division—that is, schedule 2—will provide:

... clearer and more accessible provisions that will make the whole Division easier to understand.

That is a challenge for us as legislators every time. On schedule 3:

The amendments in Schedule 3 provide for a less adversarial approach to be adopted in all child-related proceedings under the Act.

Who could criticise that? On schedule 4:

Schedule 4 contains a range of amendments to the counselling and dispute resolution provisions in the Act to ensure the legislation supports the Government’s policy of ensuring that separating and divorcing parents have access to quality family counselling and dispute resolution services so that they can attempt to resolve their disputes outside of the court.

The amendment proposed by the member for Gellibrand removes the responsibility to attend mediation in a genuine fashion. In other words, she wants a situation where people on the advice of their legal counsel can go to mediation and say: ‘I’m not talking. I refuse to speak. I refuse to cooperate.’ What a ridiculous situation. On schedule 6:

This Division deals with the relationship between orders made under the Act that provide for a child to spend time with a person, and family violence orders made under a law of a State or Territory to protect a person from family violence.

But it gives directions to state and territory magistrates as to how they might deal with those matters. Finally, on schedule 7:

Schedule 7 repeals section 45A of the Act to enable the Federal Magistrates Court to also exercise jurisdiction for those property matters where the value of the property exceeds $700,000.

It starts to become commercial and not fought out. It starts to be about property rights rather than a case of, ‘I’ll get you.’ It should be reasonable and it should be properly discovered. I reject the amendment proposed by the opposition. I doubt any reason for its being here, considering the processes that have preceded this legislation. I trust the parliament will do its job and come up with this bill as it has been agreed.

Tanya Plibersek (Sydney, Australian Labor Party, Shadow Minister for Childcare) Share this | Link to this | Hansard source

I would like to speak today on the Family Law Amendment (Shared Parental Responsibility) Bill 2005. But first I want to address some of the things that the previous speaker, the member for O’Connor, said. He mentioned the tragedy of murders and suicides in families post separation. Indeed, the most dangerous time for a woman is just after she has left a relationship. In many instances that applies to children as well. It is something that we as a parliament need to take very seriously. Every week or every couple of weeks we read in the paper about another tragedy. Yesterday I read in the paper about a tiny baby and his mother burnt to death in the family home, and the coroner is investigating that incident. There have been a number of incidents recently that I perhaps should not speak of in any detail because they are still being investigated.

To say that our automatic response to these tragedies has to be to change family law to make it easier for parents who in the end are able to act in this way towards their own children to have access to those children seems to me to absolutely defy logic. I understand that the member for O’Connor is talking about the frustrations that people experience post divorce, and I think those frustrations exist on both sides of a broken relationship, but to say that the solution to suicide and, in particular, to the murder of children is to make it easier for people to have access to those children really defies belief.

On a slightly lighter note, I would like to say that 47 years of marriage is a marvellous achievement. I commend the member for O’Connor, and I particularly commend Mrs Tuckey. I am sure that they have been 47 very interesting years.

The government has been tinkering with the family law system now for about a decade. Unfortunately, in my view there have been few real positive changes during this time. There has been a number of parliamentary inquiries and a number of government inquiries, particularly since the year 2000, that have responded to very strong feelings across the board in the Australian community about this issue. It is no wonder that these feelings are strong when you look at the shocking rates of divorce in the Australian community and the number of people who are affected, either directly through their own marriage breakdown or, as the member for O’Connor said, through witnessing the effect of the relationships of their children, friends, brothers or sisters.

This bill to amend the Family Law Act is an attempt to make improvements to family law. In the end I expect that we will support the legislation as it is before us. I think it is wise, at the end of the day, because there are some improvements in the bill. But with the amendment that our shadow Attorney-General has proposed this legislation could be a much better package. I really would urge the Attorney-General to give more detailed consideration to the amendment that the shadow Attorney-General has proposed, because I think that she has given a great deal of thought to this issue and that the proposal she has put before us is very sensible and addresses some of the very important issues that have been raised not just by members of parliament and expert groups such as the Family Law Council, the Family Court itself and the legal centres around the country but also by constituents that have contacted our offices and given us their views.

The measures that I support in the bill are the measures that encourage both parents to take more responsibility for their children. Of course in an ideal world we do not leave equal parenting until divorce. We want parents—mothers and fathers—to take responsibility for their children from day one and to have as equal a relationship with their children as possible from day one. I support any notion that says mothers and fathers are important when it comes to bringing up kids. I also support provisions that create and promote alternatives to the legal system.

I support the establishment of family relationship centres, although I am going to withhold my final decision on how well they are going to work until I see a bit more detail about what is proposed. I support any counselling, certainly after marriages break down—when it can help people get along and help them balance the competing demands of their children, property disputes and so on—but also, preferably, before marriages break down, when it can help people work out how to better communicate and how to balance the demands on them when it comes to their parenting responsibilities, their other caring roles and their work responsibilities. I think any one of us could benefit from a bit of professional advice from time to time about how to improve our relationships.

I do not support some of the other measures in the bill, and I want to speak a little bit about those. First of all, I want to talk about the criteria for the establishment of the family relationship centres. It is extraordinary, isn’t it, that with a committee of eight coalition backbenchers to oversee the development of the criteria you have got six marginal seat members out of those eight who—wow!—all, except one, received a family relationship centre in their electorate. I do not know who the dummy was that missed out. I do not know how you miss out in a circumstance where you are the one putting the list together. In a situation where you have got a select group of people working out where the family relationship centres go, with very little transparency about how the decision is made, I do not think that the public can really have faith that the centres are going to the areas that need them most. It certainly looks like the government is more interested in pork-barrelling than in parenting.

I am also concerned about the quality of the services that the new family relationship centres will deliver. The Attorney-General’s family relationship centre information paper is loaded with styling tips for centre decor but pretty light on the details about service quality. For example, it makes clear that the centres should have:

• a modern but not clinical setting, and
• homely decor with soft lighting and bright (not dingy) colours and comfortable furnishings.

I am always keen to get styling and interior design tips from the Attorney-General! But what I would appreciate even more is advice about how the quality control is going to work for family relationship centres, what sort of training staff will get in identifying and dealing with violence issues and how family relationship centres will deal with complaints—there is no complaints mechanism set out in the information paper. So a little bit less on the interior design and a little bit more on how the family relationship centres are going to work would be greatly appreciated.

I am also extremely worried about the change in the definition when it comes to violence. The member for O’Connor made light of this change. It is a very significant change, in fact. In the bill the Attorney-General seeks to amend the definition of ‘family violence’ from its current subjective definition to what is being called an ‘objective definition’. The new definition means that a victim of violence must prove that their fear is reasonable. That is why it is called an ‘objective test’. It is a very different definition to the definition that the states use when they are dealing with violence issues. The states’ definition is based on the behaviour of the perpetrator. I think that makes it much easier to be clear about a situation where a person might be fearing violence and why they would be fearing violence. We believe that the definition should remain unchanged. I note that the Attorney-General, in the exposure draft, did not want to amend the definition of ‘family violence’. Perhaps he was right in the first place and he should go back to his original instincts on this.

The Attorney-General’s own department and the Family Law Council have advised against changing the definition of ‘family violence’. I think the Attorney-General would be wise to listen to his advisers. The Family Court, the biggest service provider in this area, also advises against changing the definition. I believe it is dangerous and unnecessary to change this definition. The problem is that it will make it more difficult for real victims of violence to prove real violence.

I will give you an example of a constituent—let us call her ‘Jenny’—who is a client of a community legal centre in my electorate. Last year she finally left a long and very violent relationship. At the beginning of their relationship, her ex-husband was frequently violent but in the later years of their relationship the violence was less frequent. He was still very controlling and very abusive in other ways and did occasionally hit her but not as often as he did at the beginning of the relationship—in part, because Jenny, like most victims of violence, had become very adept at recognising the signs of what was coming and defusing the situation where she could. That meant that Jenny—likes tens if not hundreds of thousands of Australian women—walked around on eggshells, as would the kids. In any case, under the government’s proposed ‘objective’ definition of violence, it would be very hard for Jenny to prove the behaviour that she recognised as the early signs of a pattern of behaviour that was likely to escalate and lead to violence—for example, a look or the way her husband was speaking or something that she noticed in his pattern of behaviour that told her that, if things went along their usual path, she was in for it. Anyone looking at that from outside would find it very difficult to recognise what it was that Jenny found threatening in her husband’s behaviour. How could you prove without the history and the context, without knowing the detail of that relationship, that Jenny had a reasonable fear of violence?

The new proposed ‘objective’ definition will apply to all provisions of the Family Law Act that deal with family violence. Many of the provisions are procedural but very important. Where there is violence, matters can be intensively case managed or fast-tracked. Shuttle conferencing can be used. To lose those options when there is violence or a fear of violence would be a great loss. It is also important that the procedures be available to families where a parent has a fear of violence. They should be available where that parent feels a fear and should not be based on whether outsiders consider it reasonable for that parent to be fearful.

The effect of an ‘objective’ violence definition when it comes to procedures for compulsory mediation is also alarming. If Jenny cannot prove that her fear is reasonable, she may be forced to attend compulsory mediation with her ex-husband, whom she fears. However, mediation is based on two people who have equal bargaining power. If Jenny does not want to attend mediation—if she jacks up about the mediation, and the family relationship centre writes a negative report saying that she is uncooperative—it is not laid out anywhere in the legislation how she can object to that report and challenge the family relationship centre’s negative assessment of her behaviour without knowledge of the background to the relationship.

I am also strongly opposed to the provision that allows for cost penalties for ‘false’ accusations. We are a country of 20 million people. Inevitably, sometime, somewhere someone has made an accusation of violence that was false—of course that is not beyond the realms of possibility—but we do not know how great is the problem. The Attorney-General is having that investigated. It might be better to wait for the Australian Institute of Family Studies, which has just been commissioned to do this research by the Attorney-General, to come up with its results.

We do not know whether this is a big problem. I spoke to one of the representatives of the groups that claim that this is a problem. I asked him how he knew that false accusations have been made. He said, ‘Because the blokes in my group tell me they never did it.’ So, ‘I’m innocent, Governor.’ That is the only argument that people can put up against this suggestion of there being massive numbers of false accusations of violence in the community. What we do know is that there is a massive underreporting of violence, the reasons for which are varied. Unfortunately, many of the reasons apply to underreporting of sexual assault as well—shame, fear of reprisals, lack of family support and inappropriate police responses.

We know that, for years, women have not wanted to speak about violence in the home. They have seen it as being their fault. They have seen it as an issue for their family to deal with within the family. It is beyond me to imagine that, somehow, false accusations are a greater problem than this documented massive problem of underreporting. We know that family violence costs the Australian community $8 billion each year.

Australian empirical research strongly suggests that false allegations are rarely made. The member for O’Connor might like to look at research by Hume and by Brown, Frederico, Hewitt and Sheehan on false allegations. These allegations have rarely resulted in the denial of parental contact. There is research on that by Rhoades, Graycar and Harrison and by Rendell, Rathus and Lech. In my view it would be much better if the Attorney-General waited for the research he has commissioned in this area. He could even look at the research that has already been done and address the problem of underreporting of violence rather than just assuming that, because there are a few people in the community who raise it in emails that he gets, there is a massive problem of false allegations out there.

I am also worried about what parenting plans will mean for Australian families. It is fantastic when couples come to an arrangement between themselves about how they deal with the kids post separation, and most families do that. Divorce is never a happy time. If you were happy, you would stay together. It is a miserable time for most people. But research shows that 94 per cent of families who file papers in the Family Court actually settle their disputes by agreement. The vast majority of parents know that it is the kids who suffer in divorce and they want to avoid that at all costs.

Parents have been able to file consent orders or parenting plans with the Family Court without costly or drawn-out litigation, but the government does not like that approach. Instead, they want this approach of parenting plans which can be drawn up in family relationship centres and which will in fact trump previously made court orders.

You might have a case that has gone on for three weeks with a children’s advocate and lawyers at 50 paces and evidence produced about previous abuse or neglect—all the things that come out in a court case—and if someone gets bullied into going to a family relationship centre and writing down a parenting plan between the two of them at one of the tables at McDonalds, that plan should not have more effect than previous agreements made through the Family Court. However, the parenting plan, which would not be registered with the Family Court and which will have been made without legal advice in a room at a family relationship centre, trumps the previous orders made by the court after a three-day to three-week hearing. We do not know how skilled the family relationship centre mediator will be. I hope that there will be skilled people there, but there is no guarantee of that. I am very concerned about this.

Finally, with regard to the equal shared parenting responsibility, we want parents to have equal responsibility. But we need to put the best interests of the kids first, and equal responsibility does not automatically mean equal time. In the end, we will support this legislation because of some of the good measures in it, but I believe that if the Attorney-General took the advice of the shadow Attorney-General and listened to his own department, the Family Law Council of Australia and the Family Court, he would improve the legislation. (Time expired)

David Fawcett (Wakefield, Liberal Party) Share this | Link to this | Hansard source

I rise to speak to the Family Law Amendment (Shared Parental Responsibility) Bill 2005. Firstly, I wish to make the point that this is a part of a holistic program that this government is putting in place to support families. This program looks not only at family law amendments but also at changes to the Child Support Agency and, as the member for Sydney has indicated, at the introduction of family relationship centres. These three elements working together are an investment in the future of families here in Australia.

The context of these changes is important because, despite some of the accusations, the focus is very much on what is in the best interest of the child. We are looking here at the rights of the child—what they should expect from their family, whether that be an intact family or a family post separation.

In that context, I want to come back to the family relationship centres quickly before I move on to the rest of this bill. I am disappointed that again the member for Sydney and the member for Gellibrand have tried to score cheap political points from an initiative which is genuinely intended to be for the benefit of Australian families. That was very apparent even in mid last year when the media were reporting on why there was a steering group set up. It was set up because of the interest of backbenchers who wanted to see the very thing Labor are talking about, which is that the implementation of these centres works out.

I will give you a good example. When the member for Gellibrand was talking about FRCs, her focus immediately switched to what I call the tertiary end—looking at referral, counselling and mediation. The focus was very much on families that are going through the painful and damaging process of separating. One of the dangers for the FRCs is that, if they focus purely on that separating end, they will become known as divorce shops.

Part of the real problem—and I am really pleased to see that the member for Sydney highlighted this—is that the proactive marriage and relationship education side will get lost. That is happening at the moment because the oil normally goes to the squeaky wheel and it is the people who are hurting who are demanding a lot of attention, and that is where a lot of the resources go. What we have found is that many people who look at the FRCs look at them purely in the context that the member for Gellibrand did, which is in the context of separating families, and they ignore the incredibly powerful work that FRCs can do in providing services to the vast majority of Australians who are not in that situation.

It is really important that we look at Australian demographics. My friend the member for O’Connor—and I likewise applaud him and Mrs Tuckey for their marriage of 40-odd years—came out with what many people see as fact. He said that the divorce rate is 50 per cent. That is not the case. It is actually far lower than that. The figure of 32 per cent is often now bandied around as a result of work by the Institute of Family Studies, but even that is a figure which goes across a range of decades, looking at marriages and what the risk is of a couple separating over a period of time.

If you look at the censuses taken in Australia from 1901 right through to 2001 you see a continual increase in the percentage of married people in Australia to around 50-odd per cent. There has also been an increase in the percentage of people who are either yet to be married or are widowed. People are delaying entry into marriage and people who are widowed are living longer, and so that percentage is getting larger. But the percentage of Australians who are divorced or separated is around the 10 per cent mark or lower. The actual figure is around two million people. That is a huge figure and there is a huge amount of hurt there. However, that also says that, if we are to prevent more people ending up there, we need to focus on proactively helping families to build stronger relationships so that they do not end up in the situation that this whole family law amendment bill is about. Part of the reason for the existence of the task force is to make sure that the implementation stays on track across the spectrum of measures.

I would like to briefly address some of the other claims about the FRCs before I talk about the family law amendment bill. I believe this point is really important. I agree with members opposite who talk about things like KPIs and looking at performance measures that do not just turn these places into sausage factories. I fully concur with that, and that is why, if you read the operational framework, you will see that throughout it we do not just look at the number of parents who attend the course. The feedback is the number of parents who, after working with an FRC, report a positive improvement in the quality of their communication with the other partner post separation. We are not just talking about the number of parenting plans; we are talking about the number of parenting plans which are still being followed and are adding value at least a year after the parents have been to the FRC. Through the KPIs, it is not numbers; it is numbers and quality, and it is that quality aspect which we are very keen to see in there.

For example, objective 3 specifically looks at the delivery of high-quality, timely, safe and ethical services through the FRC. So there is a focus on quality, because we recognise that just having the centres there is not enough. They must be delivering a quality service to support intact families, whether they are just getting married, having their first kids or having teenagers—that is the phase of life I am in, and I have to tell you that none of us can do that without a bit of help and guidance at times—or whether it is people at the point where they are really struggling and need some assistance.

The issue of competency has also been raised a number of times. I wish to reiterate, as I have before in this place, that one of the processes of the task force is to engage with subject matter experts in industry who are working with families already around Australia—whether it is Indigenous people, whether it is in languages other than English or whether it is people looking at marriage counselling or mediation or people who are expert in screening for violence. One of the functions has been to draw together reference groups and steering committees to guide the skills council as they look at bringing together the framework which is going to outline the competencies and skills that people working in FRCs need.

I would like to lay to rest the two accusations that have been made today: firstly, that the implementation is flawed because of a lack of detail—that is clearly not the case; and, secondly, I would like to rebut in the strongest terms the idea that the task force which the Attorney-General has set up is there for anything other than reasons of making these centres work for the benefit of Australian families. I reiterate again that the members in the task force have specifically had no role in making decisions on issues such as the locations of these centres. I wish that to be on the record yet again.

While we would all like to see families stay together because that is clearly the best outcome for the children, based on the 2001 census we know that roughly 55,000 couples a year separate and eventually go through divorce. This has a huge impact on the children and extended families. Whilst it is not desirable that people reach this point, the fact is that we need to make this process as manageable as we can and to get as much of the adversarial process out of it as we can. I would like to address a few of the key points that these amendments bring in.

I particularly want to address the presumption of shared parental responsibility and the obligation on the courts, under these amendments, to consider if equal time with both parents is reasonably practicable and in the best interests of the child. Many of the people who have spoken against these amendments have left out those last two parts: is it reasonably practicable and is it in the best interests of the child? This amendment provides the platform for the courts to consider whether the involvement of the other parent is something that will be of benefit to the child. Many of the claims that are against this are based around the premise that, before the separation, one parent—normally the father—did not spend equal time with the child. Therefore it will not work and it should not work afterwards and he should not even consider or hold out hope of having anything approaching equal time with the child.

I think most people in Australia accept the fact that the mores of our society mean that there is a social contract that often—not in all families but often—one parent will take on the burden of working and one parent will take on the greater burden of the day-to-day hands-on care of the children. That does not imply that there is a difference in quality of relationship between those two people and their children. The attitude of both parties, and particularly the relationship between those parties, is critical to defining how good the relationship is between the parents and their children.

I look at my own background and I see many service men and women who frequently have to work long hours and are away from their families, but what I also see are some of the best parents and best fathers I have known. They have good relationships with their wives and they have an attitude that says, ‘Where I possibly can, I am going to proactively invest in my relationship with my wife and my children.’ Whilst the time may be limited, the quality of the relationship is outstanding. Obviously there are many people who, even though they have abundant time, do not make a priority of the relationship. I understand then why some of the angst occurs about whether they should have equal time after separation. The argument that says that before separation they did not have equal time and therefore they should not have it afterwards just does not withstand scrutiny.

It is also important to see that the same people who argue that often say that quality time post separation is more important, so the non-resident parent—normally the father—should be happy with a couple of days a fortnight or maybe a week in the holidays, because it is quality that counts. If they really believe that, that undermines the premise of their first argument, which said that because the father was not there in equal quantity of time before separation he cannot possibly have a good enough relationship to make things work seeing more of the child afterwards. It is a self-defeating argument. I believe it is important that not only do both parents have an opportunity to invest in the lives of their children pre and post separation but, more importantly, they have an obligation and a responsibility.

I throw out the challenge to the fathers of Australia to consider the balance of their lives and where they place their priorities, because dads have a fantastic opportunity to shape the culture and the quality of family life such that separation will never occur. They also have the opportunity to add tremendously to the development and growth of their children. I know that many fathers out there are doing that fantastically. Most of us are learning along the way, as we learn about our changing roles as fathers and husbands. There are some people who do need a fair bit of help. All of us can do with help, and some need a bit more than others.

I also wish to address the measures in the legislation that look at domestic violence—the occurrence of it, the threat of it, the reporting of it and the misuse of it. The member for Sydney talked about a person called Jenny—a hypothetical person or perhaps another name for a person that she knew—and was concerned that Jenny had a history of violence with her partner and would not be able to get the protection she needed. Again, I come back to the fact that in the proposed legislation the use of the word ‘reasonable’ means that, where somebody does have a track record and they say that their partner has demonstrably used violence against them or their children and there are circumstances where this has occurred, that becomes a reasonable fear of violence. The legislation allows for exactly the case that the member for Sydney raised.

The legislation also provides some defence against using the fear of violence as a very convenient excuse to short cut a number of other measures. I believe that in this change the checks and balances are there to protect women. The balance is also there to protect men from false claims of violence. I have to say at this point that there are times when men are the victims, not the perpetrators, of violence, and that needs to be recognised.

Before I leave this point, I come back to another area where the FRCs have a vitally important role. As in so many areas of legislation, we react to the symptoms—in this case, violence—but we do not necessarily address the cause. Normally, family violence comes down to the role modelling that people have in their own family of origin, a lack of ability or awareness of how to communicate or how to resolve conflict. The importance of family relationship centres is that they will be another means for providing people with the life skills they need so that they do not have to resort to violence or, if violence has been in their family of origin, that they are provided with the awareness that that kind of conduct is destructive for them, their partner and their children and that they are given alternatives so that they can look at different ways of dealing with those problems.

I am pleased to see, and I certainly support, in the amendments ways to reduce the level of bitterness of parties in disputes. The measures include mediation and parenting plans through the family relationship centres and the roll-out of what has been trialled through the children’s cases programs in the Sydney courts where there is an inquisitorial rather than an adversarial process—the feedback from that has just been fantastic for both the participants and the judges involved. I welcome in these amendments the encouragement and direction to roll that program out across Australia.

Schedule 2 looks at enforcement regimes. Much of the anger of certain groups in the community comes back to the continual and often vexatious breaches of court orders regarding access. This legislation provides the court with a range of options to better enforce access or parenting orders. Parallel to this are measures under the CSA changes, which were announced today, looking to remove some of the financial disincentive to both partners making that access work.

I think it is important to note that the focus here is on the best interests of the child and the rights of the child to have a relationship with both parents. This means that both parents have a responsibility. The custodial parent has a responsibility to make sure that they provide the opportunity for the child to have access to the other parent and, equally important, the parent who has won through whatever process access rights to that child has a responsibility to make sure that they are there consistently for that child.

In the case of a number of single parents that I know of, the other parent does not provide any input to the child and I have seen the devastating impact of that on those children. It is important to note in this legislation the encouragement for both the resident and non-resident parent to see that they have not only the opportunity but also the responsibility to have that contact, because the child is the one who has the right to have the contact and a meaningful relationship with both parents.

In conclusion, it is important that the parliament recognises that the best interests of the child are served by a healthy, functional, loving and caring family environment where both mother and father remain in the marriage and provide such an environment for the children. It is important that we support bodies like the FRC, but it is also important that we acknowledge that marriage is not an agenda from a particular part of the community, as was inferred earlier by members opposite, but a social good.

Many studies by demographers and social researchers in Europe, the United States and Australia demonstrate the physical and mental health benefits as well as the financial and educational outcomes for children who are raised in a stable, loving marriage. Not every marriage is perfect, and the whole process of working through difficulties often makes a relationship stronger and the children more resilient. Just because marriages are not perfect does not mean that the parliament should not publicly and frequently advocate and support it as an institution.

Marriage is not an agenda of a particular part of the community. At some point in time, 72 per cent of our community express the desire to be married and supported. Christians, Hindus, Muslims, the Jewish community and many people who have no allegiance to a faith still recognise the value of marriage. So I believe it is not an agenda of one group but a social good that this government should support. For those who for reasons quite often beyond their control do not find themselves in a position to follow through for the 47 years that the member for O’Connor has in his marriage, this legislation provides some significant and welcome changes that will ease the process of the separation that does cause so much pain to so many families. I commend the bill to the House.

Debate (on motion by Mr Ripoll) adjourned.