Duncan Kerr (Denison, Australian Labor Party) Share this | Link to this | Hansard source

Those of us who make a contribution on the Family Law Amendment (Shared Parental Responsibility) Bill 2005 will reflect the diversity of views that exist within the parliament and within the broader community. I had the privilege of serving on the House committee that examined the legislation, the Standing Committee on Legal and Constitutional Affairs, and I thank the Attorney-General for the reference of the bill to the House committee. It is a practice that ought to be encouraged and carried out more generally in relation to substantial legislation.

There were difficulties in relation to the project that was undertaken. The time scale was relatively short. The bill was extraordinarily complex. The range of submissions traversed a wide range of those issues but also bristled with emotional feeling of a high order and reflected concerns that were expressed from extremes that the legislation was an inadequate response to the concerns of those who felt that the family law system was too far biased towards the interests of women—a view which I did not share and continue not to share—to the view that the moves the government was initiating undid some of the beneficial and effective legislative work that had been instigated by previous parliaments.

Having served in this parliament now for nearly 20 years and having experienced debates on this issue on a number of occasions, outside the House, within the committee system and in the House itself, I think it is fair to say that anyone who says that a particular piece of legislation brings together in a single form a uniquely best practice solution that will for all time resolve the complexities and satisfy everyone simply does not understand the difficulties that this parliament faces or the range of views that are actually held by those in our constituencies.

But I do think that the government, dealing with this matter, has broadly acted in a manner on which this parliament ought to feel some comfort. It has responded to concerns that were expressed by those who were critical of the existing law. Some of those critics are persons whose judgments I do not share; some were people whose understanding of the law was at best inadequate and at worst coloured by their own bitterness and personal experiences and an inability to see the world through the eyes of others. But most were struggling to try and assist the parliament in improving legislation. Through the committee work, the parliamentary examination has led to a number of changes which the government has adopted.

I want to say a couple of things about this parliamentary process. One of the things I would like to put on record is my concern that we denigrate the work that we do in the committee system—where we lay down our arms and strive in a bipartisan way to find solutions in the interests of the larger community—if, at the end of the day, political point scoring occurs after a report is tabled. In this instance I take those who may be listening to this debate or who read it to the fact that, in the examination that occurred in the House committee, there were extensive discussions characterised by good faith and attempts to reach sensible compromises but also by the recognition that, in any group of parliamentarians, unanimity of view would not always be possible on every point. This report contains majority recommendations, a number of dissenting recommendations from several committee members and one more substantial dissent from one of its members.

In relation to the overarching report, it is true that the majority of non-government members, me included, agreed in substance with the proposals for amendments that were supported by government members who were serving on the committee. I think that is a healthy thing and it reflects the way in which we approached this legislation. We approached it with the intention of trying to find our way through a very difficult area where no perfect solution was available—to find the best solution that could be brought forward to deal with the difficulties that the legislation was intended to address in a way which would be most capable of assisting families facing the tragedy of personal relationship breakdown, which would address the problem of how to deal with access to custody arrangements about children and which would address the issue of how to deal with disputes in the family law jurisdiction. Those disputes sometimes can be resolved amicably but, sadly, cannot always be. Within our ranks, the member for Gellibrand dissented in relation to a number of the recommendations for change that we agreed about.

I am troubled that, after the report was published and after further consideration was given to its recommendations and to the dissenting recommendations by the parliamentary Labor Party, attempts have been made to suggest that there remain divisions between the opposition spokesperson and ourselves because of the fact that, in its consideration of how to approach this legislation, the member for Gellibrand, who is the shadow minister, secured agreement from the parliamentary Labor Party, through its caucus, to support the broad framework of the legislation and most of the amendments, but not all, and to propose certain further amendments. Rather than showing conflict in the parliamentary process, that is a mature reflection of the way the political process should operate—that is, in committees we all give our consideration to the merits, not to the way in which our differences could be viewed later. If the views we take in a committee as individual members later are not adopted by our parliamentary parties, so be it. That is part of the robust nature of democracy.

We intend to work in a bipartisan and non-political forum in committees. If some members in committees take position A and some members take position B and that then is attacked outside of the committee system as division, what will tend to happen is that we will have to abandon bipartisanship. There will be pressure on committee members to agree on a partisan position internally so that they will not be criticised on the basis that they are not united. That will be extremely destructive of the value of submitting this kind of legislation to scrutiny within those committees. I believe that every one of the members who participated in the committee did so in the interests of achieving the highest value for the Australian community. I denigrate none. All of them—every single member—struggled with these difficult issues and applied their judgment as they saw best. They were not seeking to position their contributions in that parliamentary process with a view to a partisan advantage.

The debate about how Labor members of the committee took different positions does trouble me. Spokespersons and leaders on the government side have attacked the amendment moved by the member for Gellibrand on behalf of the Labor Party, on the basis that it somehow conflicts with the view taken by the majority of Labor members on the committee. In truth, the committee as a whole found common ground on 95 per cent of the issues before it, but there were areas of difference. Once the report was published, both its majority and its minority reports were entitled to full observation and adoption or rejection by the parliamentary parties. We sit, as members of the committee, trying to put aside those party decisions that have ultimately to be made. Each of us will advocate our particular points of view within our parties. Sometimes committee recommendations are rejected by governments; sometimes they are rejected by oppositions. That, again, is part of a mature political system.

Coming to the legislation more particularly, my approach to this is—I suppose crudely, and I will paraphrase it in this way—suck it and see. I am not overwhelmingly convinced that the fundamental starting point of requiring everybody to undertake compulsory counselling and mediation before entering the Family Court system is in fact going to increase satisfactory outcomes. I hope it does. I am prepared to suspend any cynicism about that. If it does and if it is successful, I will be the first to recognise it and say, ‘Well done.’ I approached the work within the committee on the assumption that the fundamental policy decision of requiring family relationship centres had been made and we had to make it work as effectively as possible. I think that was the correct position to take. But I suppose I still have some residual hesitation about the capacity to compel people to mediate and to find constructive, negotiated solutions if their approach is one of compulsion—if they do not really want to attend the process but they will just see it through and then go on to the next stage.

I hope I find that the family relationship centres that have been established are resourced sufficiently and are professional enough to mean that people, even if they go in reluctantly, gain something through that process, that their reluctance falls away and they achieve agreed outcomes without the need for contentious litigation. That is to be desired, to be hoped for, and I hope that is the effect of the establishment of these family relationship centres around Australia. I suppose just my own experience over a very long period of time is that negotiation and mediation work best when people enter them with some spirit of cooperation and in a voluntary way. The degree to which you can force unwilling participants to find common solutions without adversarial processes may be more limited than the hopes of those who are proposing this legislation justify.

But, that said, once you accept that proposition these changes I think are substantially an advance. I do not pretend they will resolve every issue that is going to come before the family relationship centres or, later, the courts, if that process does not lead to resolution. I do not pretend that anything can remove the concerns of those who have submitted the more extreme submissions at either end of the case for and against this legislation. But I do believe that broadly the recommendations that will be implemented take us closer to where the Australian community would wish the system to operate, particularly the starting point assumption that each parent has a considerable amount to offer in terms of their capacity to provide ongoing care and love for their children, that the court should be mindful of that broad intention that the parliament is seeking to implement in this bill, but that fundamentally we are not moving away from the capacity to make a judgment that, in the best interests of the child, arrangements other than a simple mathematical division of the time that each parent will be permitted to have with the child are possible or even desirable.

I believe that there was no committee member who took the view that you could approach the family law task of assessing care arrangements for children on the basis that you can simply divide the time in two and say that that task was done. It is not a suitable starting point. We rejected that underlying proposition and we maintained the starting point that has underscored family law acts since their introduction—that the best interests of the child should be paramount, notwithstanding a starting point that the courts are more specifically directed towards: making certain that the interests of each of the parents of the child are properly taken into account also.

The other important point I would like to make in relation to these difficult issues is that we do need to make certain that the family relationship services and centres are properly accredited. The quality of those centres will be central to the success or otherwise of this legislation. Presently there is no effective accreditation system for those centres and, more troublingly, as we discovered through the inquiry, there is no effective licensing or accreditation system for the services that offer supervised access in cases where the courts or agreements require that supervised access be provided. That is a real weakness that this committee identified almost as a by-product of its larger work but one which stands out. How we have allowed that system to stand so central to effective and harmonious workings of the arrangements that are often ordered in this area without making certain that we have an effective licensing regime in that crucial area is I think troubling to all members of the committee that heard that evidence.

The family relationship centres need proper resources. They need regular appraisal of their funding needs. The services have to be free, in substantial part, for adequate initial negotiations and services. There need to be benchmarks to ensure that the services do not discriminate on the basis of religion, age, disability, gender or economic advantage—to make certain that they are not used as advocacy points for any political or religious agenda. And it is important that the government immediately release the accreditation and quality standards for the relationship centres before mediation becomes compulsory.

With those remarks, I will close my contribution in this debate. I do not pretend that this is the end of all discussion about family law improvements. It cannot be. We will not have a perfect product after this, but I think we have reason to be pleased with the way we as parliamentarians have addressed this contentious issue. (Time expired)

Jackie Kelly (Lindsay, Liberal Party) Share this | Link to this | Hansard source

Mr Deputy Speaker Causley, may I agree with the member for Denison’s concluding remarks, which you so generously let him finish. This is not the end to family law disputes. Obviously, when the report Every picture tells a story came out, there was a lot of discussion about that. That report was well overdue. There had been significant changes in families in Australia since 1975, when the Family Law Act was first thought of and the court systems were set up, with ways of resolving these matters with less than full courts, on a no-fault basis, with the interests of the children or other matters to be considered.

I am reminded of a car ad—which is obviously not as successful as I think it is, because I cannot remember the name of the vehicle, but it is a four-wheel drive, possibly a Ford Territory. As it goes down the road, it changes from a car with a couple and the extra kids in it; then the dad is out of the car and there is a single mum; then the blended family jumps in; then we have empty-nesters—the kids have gone off. It really taps into what is happening in Australian society at the moment—that journey of families through the Australian culture. We have a vast array of types of families that we did not have in the seventies or eighties. We need to be focusing on parenting for better Australian citizens, citizens who are going to grow up to be contributors and net givers, not net takers.

I think everyone knows that I represent some singular pockets of hardship in Western Sydney that have a number of issues. In my area we are affected by a number of those social trends, in terms of the total absence of a father in children’s lives. I quite regularly see young males—say, 18 to 25 years old—who just cannot cope, and they walk completely away from their parenting responsibilities. The mother is on a very low income and generally may see $5 a week—although, if our changes occur, she may see $6 a week—but, at the end of the day, it is small compensation for not having someone doing the heavy lift with you.

I know, as a mother, that my husband’s parenting methods often leave me horrified because they are not something that I would do, but certainly my young son just loves a good rumble, a wrestle. I feel that a male’s way of parenting and interacting with his children is different from what I do as a mother but equally as important. It allows you respite between the demands of children and other things in your life, and it really is probably the easiest way of raising kids and giving them some options, some character traits from both parents, to choose from as to what they would like to emulate and the type of person they would like to be.

That is not so for a lot of children in my area. We are now at a point where 50 per cent of marriages break up and 30 per cent of children are born to unwed mothers. That does not mean to say that they are not financially capable of raising their children, but it is about the commitment to relationships and to everything that is involved. The member for Gilmore mentioned the Liberty Swing that was installed in her electorate through our school funding grants. A similar swing was installed at Kurrambee School, a school in my electorate for children with disabilities. I often marvel at the mothers who get a particular blessing from God and how they manage. Extraordinarily frequently it is a situation where the male in that relationship cannot deal with it and the mothers are left to go on alone. They do so most commendably and do the best they can.

So life chucks all sorts of curved balls at you, but at the end of the day you have to raise your children and as a nation we have to look at how our children are being raised. I see too frequently children figuratively grabbed by the ankles and used as baseball bats by parents to beat each other up over a failed relationship that they are feeling very bitter and torn about. They are so involved in their own emotions that they cannot see what they are doing to their children.

I make no bones about it: I certainly stood up in the party room and backed the tribunal option, where we would have a specialist tribunal that is inquisitorial, not adversarial, and one that can call its own evidence in the child’s best interest; where someone sits out the front with the skills to elicit from a mum and a dad, grandparents, cousins and extended families on both sides what support a young person needs to get their best go in life. It is not an order for one point in time; it is a rolling thing that goes with that person through until they are 18. Even if there is a dispute about the wedding, such as where mum is going to sit with her new partner and where dad is going to sit with his new partner, you could still keep coming back to this tribunal.

That tribunal did not eventuate. As with most things, life is generally a compromise, as the member for Denison put it, and I do not think anyone in the parliament quite got their vision of what needed to be done with family law. I think we all have a different point of view on what to do and most of us are sitting back and saying, ‘We’ll suck it and see.’ So we are going through with the family relationship centres. Certainly, they are a lot less costly than a tribunal. I have found that family law courts tend to become massive and expensive; that they start out as tiny tribunals that are supposed to fix things in a quick, efficient and cost-effective way but somehow end up as huge bureaucracies.

We have gone with 65 family relationship centres throughout Australia. The first 15 were announced, and the first one was in Penrith, in my area. That is no surprise, because my electorate and the electorates of Chifley and Greenway are largely areas with many very young children. These areas present particular challenges in terms of giving children the best start in life, as we often have to deal with young people who do not have verbal or other skills to cope with some very complex human emotions.

In one recent instance, a young fellow found out his partner was not faithful. He responded in a very Hollywood manner by kicking the wall, breaking doors, smashing furniture and carrying on. That situation ended up with apprehended violence orders that have gone on and on. It was over two years before he saw his child again. In my experience, he has a very supportive family with very involved grandparents. He is not a bad father and, with maturity and growth through life, this young man can make a really significant contribution to his children’s lives. So I think it was important to amend the existing definition of ‘family violence’ in terms of what is reasonable. What is reasonable given, for example, a person’s education and emotional maturity? Where do they get their learned responses to situations? Are they just acting out a sort of Hollywood drama or are they genuinely violent and a threat to their children and spouse?

I have experienced a lot of that sort of thing in my electorate. There are young men in my area who do not say, ‘Excuse me,’ but just biff their mate to get their attention. You can interpret that as violence, but it is where they are at in their lives, and I do not think it precludes them from being very caring and interested parents if they are given the chance, with a lot of input into what parenting means and what their responsibilities are as a parent. Hence I was thrilled when it was announced that the first family relationship centre was to be located in Penrith in my electorate of Lindsay.

The family relationship centres offer a tremendous change from the current situation. I hope that over the next three years of the operation of these centres we will see a cultural change so that parents do not make a first phone call to a lawyer, so that they will actively seek out parenting guidance on being mentors and role models for their children and that they will learn better ways of playing with their children and all sorts of other valuable skills, even if there is no chance of resuming their primary relationship. They can learn how to introduce subsequent partners or spouses into their children’s lives. I see a lot of very torn children who experience a revolving door of partners in their custodial parent’s life, which makes it very difficult for them to recognise a committed relationship, to have role models and to develop guidelines and the behaviours necessary to sustain those relationships long term, and they go on to have failed relationships themselves.

This is a landmark development. It is about enforcement, which is another complaint a huge number of people have made to my electorate office. The frustrating part of this matter is the amount of time my electorate office devotes to family law issues and child support issues. This should not be a political issue. It needs to be resolved out there in the community through the bureaucracies and structures we have in place. If this matter is coming into my electorate office, clearly there must be a political solution and we need to have the gumption to get up and do something about it. That is effectively what this bill does and what our announcement yesterday on the Child Support Agency does. We are taking some very big, bold, hard steps towards a different environment. I think there will be some mid-term angst and I expect that the phones in my electorate office today will be ringing off the hook over yesterday’s announcements. But in the long term I think we will see social changes so that there is an expectation that separating partners will take the view that: ‘I will be involved in my child’s life. Let me examine what that involvement will be and how I can best manage that and be the biggest contributor to it that I can. Let me examine how I can assist my ex-spouse or my ex-partner to successfully negotiate the raising of future Australians.’

There are some enormous issues out there. It is a tremendously changed world, for a crusty old conservative female. I shake my head sometimes and think, ‘Some of these kids don’t stand a chance.’ It almost started two generations ago with the breakdown in their own parents’ relationships. It is so difficult to mend. It is so emotional. People on low incomes do not have a huge amount of resources and quite frequently do not qualify for legal aid, and they walk away from situations and responsibilities. One fundamental thing that comes through in this bill is the child’s right to know its parent. If, when that child is a teenager, he finally decides that either one of his parents is an emotionally stunted, self-centred, immature, irresponsible git, that is fair enough. But he knows the parent well enough to make that assessment of their character instead of having a sense of abandonment that some imaginatively wonderful person just left them because he was not good enough. This is an incredibly important part of this bill. A child needs to know its parents. It needs to know both sides of its family.

I heard an incredibly sad story. It involved drugs. The mother had custody. Again, the father had just walked away—it was too hard; he was too young. He had got himself on the methadone program and eventually got a phone call out of the blue, when he was living in a friend’s caravan, to say, ‘Come and get the kids.’ He was dumped with kids of six and seven. Suddenly the children were abandoned with their father, who subsequently did a great job for a few years but died in incredibly unfortunate circumstances. The children are now with the paternal grandparents. You do not know what life is going to throw at you. Knowing both sets of grandparents and maintaining a relationship with both sets of grandparents is incredibly important. Grandparents need to be considered in the solution to what is in the child’s best interests.

I have seen the whole gamut of family relationships in my electorate—from the very wealthy and educated couples who impact terribly on their children to people who really were just too young and too ill-equipped to deal with the strong emotions that they felt and have taken incredibly bad parenting decisions. If nothing else, this bill reaffirms this parliament’s commitment to the children of Australia that we can do it better, that we can have a cultural shift where children know their parents—that is, where they know their parents at their worst and at their best—and know their grandparents. We see a huge change in this bill in access and enforcement of access. It goes to the point of quid pro quo—that is, make-up time—and even to community service for offending parents who spuriously decline access. I think that is a move in the right direction. Long term we will see some very significant changes in how adults deal with tough emotional times. They should not be impacting on the children the way that they do.

I suppose I am like the member for Denison—let’s suck it and see. Let us really see how we go with these massive changes. But, again, if they do not work, let us still have the courage as a parliament to come back and revisit this very difficult issue. It is not something that is going to go away. I am sure that 10 years from now the society in which we live will have even more complex problems, and we should never walk away from something that is just too hard and say we cannot do it. These issues create an enormous amount of work for me and my electorate staff. I want to take this opportunity to thank them very much for the caring attitude that they take towards the people who front up at my office. I do hope that their workload will be diminished by the measures in this bill, which will better equip us to help resolve these issues out in the community.

Ms Catherine King (Ballarat, Australian Labor Party, Shadow Parliamentary Secretary for Treasury) Share this | Link to this | Hansard source

In speaking on the Family Law Amendment (Shared Parental Responsibility) Bill 2005 I want from the outset to set out the principles that I think are central to this debate. Central to this debate for me is that it is the responsibility of both parents, whether they are living together or apart, to provide a loving, nurturing environment for their children to grow up in—one where they are safe, they are encouraged and they learn to develop into strong adults, free from fear and knowing that they are accepted and loved. That is the responsibility of both parents, whether they are living together or apart. Too often over the course of discussions on changes to family law the debate degenerates into one of parental rights. Whilst of course in any change to family law we need to respect and consider the rights of parents, for me it has always been a secondary issue to the responsibility that parents have towards their children.

In the course of my time as a social worker, which was a long time ago now—and even now as a federal MP—I have seen many cases where this responsibility has been abrogated. I have seen children living in desperate circumstances, having to lie for drug affected parents. I have seen children, many of them deeply troubled, who hardly know their fathers, having been abandoned by them before birth. I have worked with young people who have been dumped by their mothers with grandparents or on the state, with little hope of ever having a relationship with either of their parents. I have seen children whose parents—overwhelmingly women—have been subjected to unimaginable violence by their partners, women barely able to lift their heads to look you in the eye to speak to you. I have seen children and young people so badly abused that there is little hope of them having any type of normal adulthood. I have seen grown adults behave in the most spiteful and despicable way towards each other—children manipulated, tales told. I have seen grandparents saddened by what has happened to their children and desperately wanting to continue contact with their grandchildren.

I have seen men bemused and grief stricken by the loss of their family, completely bewildered about what has happened to them. I have seen families working out new ways of being together but apart. And I have seen the extraordinary resilience of kids and the wonderful role that can be played by grandparents as peacemakers and refuge. I have seen parents desperately trying to make new lives for themselves in blended families and trying to make it work.

All sorts of circumstances come through my office—men whose wives have left them for seemingly inexplicable reasons, who have had a desperate, ongoing battle to see their children; men living in impoverished circumstances who genuinely want to do the right thing but who seem to hit brick walls at every turn. But I have also had men demanding, in the most explicit language, that their former wives are little better than streetwalkers and threatening to kill their children if they are not returned to them.

All of these circumstances are the human face of this legislation. They demonstrate most clearly that it is impossible for us to legislate for every circumstance and every human behaviour—we just cannot. The best we can do is to try and make sure the family law system has at its core the notion that children are better off where they can have a relationship with both parents; a family law system where those subjected to abuse and violence are absolutely protected and where parents are given every opportunity to work together in the best interests of their children and do not treat them as property to fight over. That is why I come to this debate with very strong views that the debate must be about parents sharing their responsibility for children, not parents having equal rights over their children.

The test for me with this legislation is: do the proposed family law changes support this? On the whole, they do, through a number of new provisions. Schedule 1 of the bill introduces the presumption of shared parental responsibility. This is based on the presumption that it is in the best interests of children for both parents to share responsibility for decisions about them, and I actively support this provision. The schedule requires joint decision making and consultation over major long-term issues, with these being defined widely, but not exclusively, as including issues regarding education, religious and cultural upbringing, the child’s health, the child’s name and changes to living arrangements that would make it significantly more difficult for the child to spend time with the parent. I am a little concerned, I have to say, about the practical application of this provision, but I am prepared, as the member for Lindsay has said, to suck it and see. The presumption of shared parental responsibility will not apply if there are reasonable grounds to believe that one of the parents has engaged in child abuse or family violence, and I want to go back to that provision later in my speech.

Shared parental responsibility is a different concept from, and separate from, residence and the amount of time children may spend living with one parent or the other. Whilst the schedule does not contain a presumption of equal time, it does require the court to consider equal parenting time when making parenting orders. Again, the court needs to take into account the best interests of the child as well as examine whether it is reasonably practicable. While some groups continue to lobby for equal parenting time, I think the balance provided by the legislation is a sensible way forward and follows the recommendations of the report Every picture tells a story.

Schedule 1 also changes the process for determining what is in the best interests of the child, including taking up Labor’s suggestion regarding parental obligation. The court will now need to consider the extent to which parents have actually fulfilled their responsibilities, including whether they have participated in making decisions about major long-term issues, spent time with their children, communicated with their children and maintained their children, and also the extent to which a parent has facilitated or hindered the other parent taking up these opportunities. I think this provision in particular makes sure that the law looks at the responsibilities that both parents have in parenting their children.

Schedule 1 also requires parents to try and resolve matters before they can get to court, through compulsory mediation and giving greater legal effect to parenting plans.

All of these measures act on the need to give parents every opportunity to come to a mutually agreed arrangement about the ongoing care of their children. It does not remove the right of parents to have a court make that decision where they are unable to reach agreement, but it does require parents, except in the cases of abuse and violence, to make every reasonable attempt. Where these attempts fail, the government needs to be more explicit that litigation is a pathway for families where there is violence or abuse, entrenched conflict or intractable disputes.

One of the areas of concern about the bill is whether it adequately protects children and their parents who are subjected to violence. I am really concerned that somehow in this debate there has been a trivialisation of family violence. The government has changed the definition of ‘family violence’ to require the victim to ‘reasonably fear for’. The concern is with the insertion of the word ‘reasonable’ and whether it will drag the court into consideration of what actions are and are not grounds to be reasonably fearful. Frankly, it is entirely subjective as to whether you feel fearful or you do not feel fearful.

I am concerned particularly about some examples quoted by the member for Lindsay where fathers, in reacting to some of the things that had happened within their families, started to act out quite violently by kicking walls and becoming quite abusive. It is not acceptable behaviour to violate property or to become abusive out in the public. Why should that be acceptable in a family relationship? It never is. I am really concerned that those sorts of comments are trivialising the experiences of many women—and it is mainly women, but not exclusively women—who experience violence in their family relationships, sometimes all the time, but particularly at times of great stress when there is a family break-up. The tone of the change is that people complaining of violence cannot really be believed. That is the most concerning part of this.

The issue is further compounded by the introduction of a cost penalty against persons who knowingly make false accusations of violence. Again I am extremely concerned that both the change in definition and the introduction of a cost penalty are clear indicators that the government seems to believe that allegations of violence, whether by women or men, are made vexatiously. Given that we know that there is serious underreporting of family violence in this country, I am worried about the signal both of these changes are sending to the victims of violence, particularly when we have spent so much time trying to get women, in particular, to report. The government, responding to Labor’s criticism, has now announced an inquiry into family violence. I hope that this inquiry looks very closely at the interactions between the provisions contained in this bill and the reporting of violence.

One of the other concerns I continue to have with the bill is the government’s roll-out of the family relationship centres, where compulsory mediation is to take place. The tender process and the decision as to where these centres were to go were dodgy, to say the least—decided by a group of Liberal backbenchers with no specific qualifications, expertise or understanding of family relationship counselling or of how communities, particularly regional and rural communities, access services. There is little information available about the accreditation of these centres. What happens if parents are unhappy with the quality of counselling? Indeed, what quality controls are there on the counselling at all?

As someone with a four-year degree in social work, I am particularly interested in what the qualifications and experience of these counsellors will be. In this day and age it appears that anyone who does a one-week counselling course is able to put out their shingle and claim to be a qualified counsellor. Given the complexity of family relationships, the probability is that counsellors will at some point in the course of counselling uncover family violence or sexual abuse. I would be concerned if people without formal university qualifications and several years experience were undertaking this compulsory mediation.

The government needs to release accreditation and quality standards for these centres. It needs to establish a complaints process and make sure it is properly resourcing these centres and evaluating their effectiveness. Nothing in this legislation or in the government’s words so far has convinced me that it knows what it is doing with these family relationship centres.

It is difficult to have a debate about changes to the family law system without also having a look at what the government is doing—or, rather, not doing—to support families. The pace and pressures of everyday life and the continued stream of bills and debt do not make things easy for struggling families. Many break-ups and family disputes occur over money. In this context it is vital that the government realise that its responsibilities to families are broader than simply this legislation.

The government likes to talk about the importance of strong families, but its policies often undermine them. If we cast our minds back to the last federal election, we will remember that the government promised with great fanfare that it would provide families with a 30 per cent rebate for out-of-pocket child-care expenses. The 30 per cent rebate was promised in September 2004. However, not one parent has seen a cent and they are not likely to until the end of the year. Even then, parents will only get part of what is owed to them. Many families are paying up to $90 a day for child care and it will not be until December 2006 that parents will get a rebate on money they spent in July 2004. Unfortunately, household bills cannot be put on hold until December 2006. The reality for many families is that they need the money now—not in two years.

The government’s neglect of families does not stop at child care. The industrial relations reforms are a perfect example of the government’s failure to provide support to struggling families. The industrial relations reforms strip Australian families of job security, a good balance of work and family, financial stability and the ability to secure a solid basis from which to raise their children. If the Howard government does not believe that this will fundamentally affect the happiness of the family household, then it is even more out of touch than I thought.

What about taxation? Perhaps if the government tried to provide genuine relief to families through tax reform, we might have some hope. But the last figures reveal that households today are paying on average an extra $10,500 in tax compared to what they paid in 1996. Typical Australian families face the second highest effective marginal tax rates in the OECD. Australia’s top marginal tax rate is rapidly becoming uncompetitive by international standards, currently ranked ninth highest in the OECD. Family income is highly dependent upon taxation issues. I hope that the recent so-called inquiry that has been launched looks at the impact of the tax system on middle- and low-income families.

Health and education are two areas that weigh heavily on the minds and purses of families. Whilst the Prime Minister does not sit around the kitchen table concerned about how he will meet his family’s medical or educational expenses, millions of Australian families do. Under the Howard government, families have seen health and education fees increase by over 40 per cent. Families, especially those whose relationships are stretched, need a government that creates the security and support that will allow them to spend the weekend with the family rather than at the workplace. They need a government that provides affordable and accessible child care so that work and family commitments can be balanced. They need a government that takes away financial pressures rather than creates them. In short, they need a government that is going to do a whole lot more to support families.

I, alongside many MPs in this place, have received lots of emails on the changes to family law. On the whole, they have been from men and, on occasion, their new partners. Many of them have told of desperate stories and I have much sympathy for their cases. Some—in the minority—were downright abusive, sexist and violent and did their cases absolutely no good at all. To those men’s groups that have lobbied so hard for changes in family law and who are disappointed that the presumption of fifty-fifty equal parenting time is not the basis of change to family law, I want to say to you: sheet the blame home to where it belongs—with the Prime Minister.

The Prime Minister falsely and, I would argue, deliberately raised the expectations of men’s rights groups as to what the outcomes of the inquiry into family law were going to be. The Prime Minister was never going to deliver on this. He deliberately dangled this bait in front of men’s groups and they swallowed it—hook, line and sinker. He effectively dog whistled to men’s groups, and if they are angry at anyone it should be at the Prime Minister for raising their expectations for something that he was never going to deliver on. So, whilst I support the intent of the bill and the second reading amendment moved by the member for Gellibrand, I also condemn the Prime Minister for falsely raising the expectations and hopes of many men who are grief-stricken by their experiences of the family law system.

In conclusion, I want to go back to where I started. For me, the core principle of this debate has to be that it is the responsibility of parents, whether living together or apart, to provide the best possible environment for their children to grow into healthy adults. The law cannot force parents to act responsibly but it can attempt to provide them with every opportunity to do so. The rest is up to them.

Stuart Henry (Hasluck, Liberal Party) Share this | Link to this | Hansard source

The Family Law Amendment (Shared Parental Responsibility) Bill 2005 represents the most significant changes to the Family Law Act 1975 since its inception some 30 years ago. This bill amends that act to implement a significant number of the recommendations of the report Every picture tells a story, produced by the House of Representatives Standing Committee on Family and Community Affairs inquiry into child custody arrangements in the event of family separation. The bill also implements most of the recommendations made by the House of Representatives Standing Committee on Legal and Constitutional Affairs in its report on the exposure draft of the bill, the LACA report.

The amendments are part of the Howard government’s reform agenda in family law. The legislation underpins the measures announced in the 2005 budget, at an estimated cost of $397 million over four years. These initiatives represent a real change in family law and I am pleased to have the opportunity to speak to them today. They aim to change how family separation is managed, getting away from costly and stressful litigation and towards cooperative parenting. I agree entirely with the member for Lindsay that the child’s right to know its parent has to be paramount in this process.

These changes to the Family Law Act will be welcomed by my constituents in Hasluck. I have spoken with many parents—mothers and fathers—and grandparents in my electorate who feel alienated and persecuted by our family law system, who are divided by separation and who feel that they are cut off from their children and grandchildren and that the children are cut off from them. I have been struck by the amount of contact I have had from people supporting the shared parenting policies put forward by the Howard government. It is difficult for any government to strike the right balance in family law matters. Family breakdown is difficult for everyone involved—parents, extended family, friends—and perhaps most difficult for children.

More than one million Australian children have a parent living elsewhere. One in four children never sees one of their parents or sees them only once a year. It is terrible to think that so many kids essentially have to do without one of their parents. It is terrible to think how much time and money are wasted on battles in the Family Court—time and money which could be spent with children. I think that parents spending less time in court and more time with their kids can only be a good thing for everyone concerned, and that is the core aim of this bill. The Howard government wants to ensure that children have a right to know both their parents and, where possible, to encourage parents to continue to take shared responsibility for their children after they separate. This bill also has an increased focus on protecting children from family violence and child abuse.

I receive hundreds of emails and letters every month regarding family law matters. It is a major issue in our communities across Australia. These letters and communications are all looking for assistance, a way through this problem that we have put in front of them through the Family Law Act in the past. In the main, these communications are from fathers who have little or no access to their children, but they are also from mothers and wives supporting their concerns and their feelings of alienation. They become depressed and angry, or both, and they feel very frustrated about the system, the lack of outcome, the lack of resolution and the lack of support. More importantly, their children are denied the opportunity to build a relationship with one of their parents. I will quote from some of the emails I have received in recent days. The first one says:

All I wish is for equality, yet the very system in place is anything but that. Having been denied access in all manners, whilst property settlement was in progress, I was totally powerless in that process. Now I am in receipt of court orders, duly signed by my ex-wife for access compliance, what do I get non compliance, in seeing my children, a deeply hurtful feeling.

Another one says:

Not only am I struggling which is effecting how much I have my children, I found out the other day that my children’s mother is now working and has been for who knows how long. The CSA has stated to me that they can not do much until I have the children more. HOW CAN I WHEN I CAN HARDLY AFFORD TO KEEP MY HEAD ABOVE WATER EACH FORTNIGHT. Come on peoples do something about it and I know I am not the only parent that is in this situation.

And from a mother and wife, which I think adds a certain poignancy to this whole issue:

I am a mother of nine year old boy and a 4 month-old baby boy. I also have 2 step children a 10 year old girl and a 7 year old boy. Together we are a blended family of 6.

She goes on to say:

... as I came to know my husband the more I realised there was absolutely no reason why he should be banished from being with his children. He talked about them constantly and intereacted with my son so well. His children were being used as a WEAPON against him a means to make him feel so low so bad so down.

We have just finished a battle that went on for 5 years in and out of court so he could have adequote access to his two children. HOW SAD!!!

How sad for those two children, was it their fault that their parents relationship didn’t work out??? Of course not yet they as their father was punished.

I can relate to those sentiments; I can relate to the emotions and I can relate to the frustrations. I have total empathy with this whole situation, having unfortunately experienced these circumstances myself. I think that in the past there has been an assumption that the father-child bond is somehow less strong than a mother’s bond with her children. This bill recognises that this rather insulting assumption is fundamentally flawed.

This government is committed to three major changes to how the government helps people deal with family breakdown. The first is a package of almost $400 million over four years for new community services to help reduce conflict in families. The second is the government’s proposals to reform the child support system, and the third relates to the changes to the Family Law Act that are covered by this bill. Each of these very welcome changes promotes shared or cooperative parenting after separation. However, the paramount consideration for the court will continue to be the best interests of the child.

Amendments contained in schedule 1 support cooperative parenting and further the coalition’s longstanding policy of encouraging people to take responsibility for resolving disputes themselves in the first instance. This bill provides for a presumption of equal shared parental responsibility. This means that both parents have an equal role in making decisions about long-term issues for the benefit of their children. This seems to be a policy of extraordinary commonsense. In fact, it is remarkable that such a commonsense approach can be so revolutionary. Since its inception, the Family Law Act has been dogged by flawed and unfair assumptions, poorly thought out enforcement mechanisms and onerous bureaucratic procedures. It is wonderful to finally see the fingerprints of the Whitlam government slowly being erased from the Family Law Act.

It is interesting to note some of the comments of the previous speaker, the member for Ballarat, who would like to see, I am sure, a licensing system and a regulatory system around family counsellors to make sure that they have got the experience or the university qualifications. But there was no mention of compassion, empathy or understanding of the situation—just some black-and-white qualification. That is not the human way of addressing these issues.

As a result of these changes, the court will be required to consider children spending equal time with both parents. One can only applaud such a suggestion. This only applies where it is reasonably practicable and in the best interests of the child. Equal time works for some families, but if it is not appropriate the court must consider an arrangement for substantial and significant time with both parents. This means more than just weekends and holidays. It means doing the day-to-day things with children and having the opportunity to do those things which form the bond between a parent and the child. The right of children to know their parents and to be protected from harm will be the primary factors in deciding the best interests of the child.

The bill will address concerns about the existing definition of ‘family violence’ to introduce an objective test. There is no requirement for reasonableness with respect to violence that has actually occurred. However, an apprehension or fear of violence must be reasonable. I do not condone violence in any form, but current provisions have been too easily abused, smearing the reputation of many loving and devoted parents and denying them access to their children.

The bill will require people to attend family dispute resolution and make a genuine effort to resolve the dispute before applying for a parenting order. This requirement does not apply where there is family violence or abuse. Breaches of court orders are a major source of conflict and distress, in part due to the difficulty of enforcement. Schedule 2 of the bill strengthens the existing enforcement regime in the Family Law Act, giving the courts a wider range of powers to deal with people who breach contact orders through the ability to impose costs, orders, bonds, make-up time and compensation.

I am pleased to say that these reforms make sure as many children as possible grow up in a safe environment with the love and support of both parents. The family is the building block of our society, and it is important that government provides a reasonable framework for resolving family disputes. This bill makes important improvements to that framework, and I commend it to the House.

Annette Ellis (Canberra, Australian Labor Party) Share this | Link to this | Hansard source

I rise today to speak on the Family Law Amendment (Shared Parental Responsibility) Bill 2005. This bill will improve the Family Law Act 1975 in several ways. Generally, it aims to encourage parents to take more responsibility for their children after relationship breakdown. It proposes alternatives to the legal system to try to resolve disagreements. It improves the legal process. And, most importantly, it makes children the priority following family breakdown.

I would like to reflect, if I can, for just a few moments. It may be 10 years for the Prime Minister this week, but it is also 10 years since I was elected to this place. In those 10 years, in my work in my electorate, I think I have probably seen almost every variation that one could possibly imagine in terms of family law and family breakdown and the situation that parents of both genders find themselves in when going through such a situation. I know that it would be very rare to find a member in the House who has not had that same experience. I think it is dangerous to generalise too much by saying that one side is worse than the other. I have seen men who have been left by their spouse and have taken years to get over the emotional trauma of that. I have seen women who have been the custodial parent, if I can use that term, who have faced the most unbelievable behaviour by their ex-partner in an attempt to do anything possible to avoid the payment of money. I have seen courts give access to both parents, with one of them just not interested in pursuing the access of their own volition. I think we have experienced everything you could imagine.

I am saying those words because it is important for me to have an opportunity to express how difficult in real terms it is for legislators to always get it right. I am pleased that this bill is here and that attempts are being made to alleviate and remove some of those difficulties. It is also fair to say that the bill probably will not be the perfect bill, because of the elements of human nature, human behaviour and human emotion we are dealing with. It is very important for me to have the opportunity to say that.

Nevertheless, we are here debating this bill. I am particularly pleased that the Attorney-General backed down from his original draft of the bill and adopted our call for family law to recognise parental obligations to children and not to focus simply on parental rights. It is absolutely essential that the needs of the children come first. The principle of the best interests of the child should always remain the paramount consideration in resolving all parenting disputes. Family law should not be a tug-of-war between mothers and fathers; it should be about what all parents can do for their kids.

Unfortunately, in my observation, Howard government policies in some cases are actually putting more and more pressure on families. These include some of the industrial relations reforms and some of the child-care shortages that are being faced. This can place additional pressure on families, maybe leading to further family breakdown and financial pressures. It can also make shared parenting virtually impossible for separated parents who need to work, particularly when we are talking about child care.

It is pretty disgraceful that the Howard government has refused to undertake to produce or release family impact statements for its new policies. However, I turn again more directly to the bill. I will discuss some of the reforms outlined in the bill and some amendments proposed by Labor which we believe very strongly will improve the bill.

Schedule 1 deals with the issue of shared parenting. The bill will require the court to apply a presumption that it is in the best interests of the child for parents to have equal shared parenting responsibility when making parenting orders. In this context, parental responsibility does not necessarily focus on contact or time with the child. It is defined as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’. It includes decision making on important issues like education, religion and health. The current law allows for equal shared parenting responsibility, but it is not the basic presumption, so this is a great improvement. The presumption will not apply if there are reasonable grounds to believe that one of the parents has engaged in child abuse or family violence.

Schedule 1 also requires the court to consider—and I repeat ‘consider’—equal time, that is, fifty-fifty with both parents, if it awards shared parental responsibility. It is important to note that there is no presumption of equal time with each parent, but the court must consider this option if it awards shared parental responsibility. Presumption of equal time has been rejected across party lines by the House of Representatives Standing Committee on Family and Community Affairs in its report Every picture tells a story.

I am pleased that the government has taken up Labor’s proposal that, when considering the best interests of the child, the court should consider the extent to which a parent has fulfilled or failed to fulfil his or her responsibilities as a parent. This includes whether a parent has taken or failed to take the opportunities to participate in making decisions about major long-term issues, to spend time with the child and to communicate with the child. The court must also consider the extent to which a parent facilitates the other parent taking up these opportunities and the extent to which a parent fulfils their obligations to maintain the child. Labor believes that it is essential that the government undertake thorough longitudinal research on family outcomes following the introduction of this legislation.

Schedule 1 of this bill also introduces compulsory family dispute resolution for separating parents before they can commence court litigation, with some exceptions. Whilst Labor support this schedule, we are proposing a range of amendments to make sure that separating parents can access a quality mediation service, including three hours of free consultation, which the government has talked about but which is not mentioned in the bill. It is also important that separating parents do not have to go through mediation if the court is satisfied that there are reasonable grounds to believe there has been or there is a risk of family violence or child abuse. Labor are concerned with the wording of this exception because of the government’s proposed new definition of ‘violence’. Schedule 1 of the bill amends the definition of ‘family violence’ to require the victim:

... reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

The word ‘reasonably’ has been inserted, and it will make it an objective definition rather than a subjective definition. Labor’s concern about this is that the court will now have to decide what is and is not conduct that would reasonably cause fear, which implies that some forms of threatening conduct are acceptable. The other concern is that it may not take into account the previous experiences of the victim, such as a history of physical abuse, which may make the person more inclined to feel fear in circumstances where another person might not. It will make it more difficult for victims of violence to prove that they are at risk. Labor has proposed several amendments to deal with these concerns, including deleting the word ‘reasonably’ from the current definition of family violence.

The bill also introduces financial penalties against people who knowingly make false allegations about violence. This is a very complicated issue, and Labor is moving an amendment which will delete this provision based on the concern that it might dissuade those who have genuine concerns about violence from raising them. Family violence can be notoriously difficult to prove and people might feel it is not worth the risk that they will not be able to substantiate their allegations and thus face a penalty. As I said, this is a very complicated area and there is no easy solution to these sorts of problems. But we have the responsibility to protect those who are vulnerable and at risk of being victims of violence.

I would like to go back briefly to the issue of mediation. Labor supports changes that will promote family dispute resolution outside the courtroom. This bill is part of a package of reforms that includes the establishment of a network of 65 family relationship centres or FRCs in the long run, with 15 FRCs in the initial program. If they are managed well and properly resourced, they will provide an invaluable addition to the family law system by being a shopfront and entry point for advice, referral, counselling and mediation services.

I would like to raise three points on these FRCs. Firstly, to oversee and develop the selection of sites and performance of these centres, the Attorney-General established a committee of eight coalition backbenchers. Six of those eight members, as I understand, hold marginal seats and five of them have received an FRC in their electorate. I cannot help but be critical of this process. There are numerous parliamentary committees with representation from all political parties in this place that could have very well overseen the establishment of FRCs in what I believe would have been a fair manner. This is a little bit of arrogance on behalf of the government and, more importantly, an ignorance of and lack of attention to the committee process in this place, which I am so strongly in favour of and support. The way that was handled might have been an underwriting of the value of those parliamentary committees. In relation to my own electorate, I know that there has been a commitment to have an FRC within the ACT. As yet, where that will be has not been determined to my knowledge. I am hopeful it will be in my electorate. I would like to think that, with a population of 320,000, the ACT might get more than one.

Schedule 1 also changes the nature and status of parenting plans, which are agreements in writing between parents concerning children. Currently, parenting plans are unenforceable. This bill substantially increases the role of parenting plans by requiring, for example, the court to consider the most recent parenting plan when making any parenting order. Labor have proposed several amendments to ensure that parenting plans are in the best interests of the child. For example, we propose to add in a seven-day cooling-off period before any parenting plan can be regarded by the court. This is due to the concern that a parenting plan could be made in private, under duress and without advice or support and still be given new status. The bill also expands the content of parenting plans and expands the obligations of lawyers, counsellors and mediators when advising people on parenting matters to ensure that they provide the best advice possible.

Schedule 2 of the bill empowers the court to impose penalties on parents who disobey parenting orders without a reasonable excuse. The major changes are the use of costs orders, the ability to order compensatory contact, compensation for expenses and giving parenting plans more weight.

Schedule 3 outlines special court procedures for litigation concerning children. The aim is to ensure that children’s matters are handled quickly and are as free of legal technicalities as possible. It hopes to provide less adversarial court processes and more active case management in children’s matters. It builds on the Family Court’s Children’s Cases Program, which is being trialled in the Parramatta registry in NSW. Labor supports this schedule in principle, but is concerned that it is being implemented before the results of the trial in NSW are known. Labor’s amendment proposes a commitment that the results of the NSW trial will be tabled in parliament and that the government will revisit these provisions if the trial finds a need for change.

Schedule 4 aims to make changes to dispute resolution processes. It aims to regulate family relationship practitioners, such as counsellors, and obliges lawyers and other workers in this area to provide certain information to people considering instituting proceedings under the act, such as the option of non-court based services. We are concerned that people who may need court based services may be discouraged to use them. Therefore, Labor is proposing that documents given to people contemplating Family Court proceedings include the following information: the right to have the matter resolved by a court; the availability of legal aid; and the benefits of court involvement in cases involving violence and entrenched conflict.

The bill contains many more reforms and there are other changes proposed in Labor’s amendments. I have highlighted merely some of the major changes. Generally, the bill will improve the family law system in this country. The issues are extremely complicated and, in some cases, it is impossible to please all the interested parties. When you consider that the key groups involved in this issue include fathers’ rights groups, women’s groups, lawyers and grandparents—the list is very long—you can see why this area can be so complicated. The most important thing is that we all aim to meet the best interests of the child when families are separating. All parents and family members must put their personal feelings aside—and we must encourage them to do that—and do what is best for their children and in the end for the family unit in whatever shape it make take into the future.

I will support the bill as it stands if necessary, but I very strongly urge members on the other side to seriously and honestly consider Labor’s amendments, which, I believe, if adopted, would improve the outcomes for children following family breakdown. Those amendments are put forward in a very honest way to help improve a very important piece of legislation before this House. I would like to think that we could consider them in a non-contentious way and give them careful thought. At the end of the day, who cares whose bill it is, as long as it offers protections to all participants.

I conclude by repeating a couple of the comments I made at the outset. There are numerous—in fact, too many to list—variations on family breakdown and other family considerations. There are so many human elements to this whole debate. At the end of the day what I want as a member of this House is to make a contribution to this debate which is as beneficial as possible for everybody. I hope that is the outcome we will see.

Alan Cadman (Mitchell, Liberal Party) Share this | Link to this | Hansard source

The work done in the Family Law Amendment (Shared Parental Responsibility) Bill 2005, which we are considering today, had its genesis in 2003. It is the result of two House of Representatives committees and numerous submissions to those inquiries in a nationwide endeavour to improve the Family Law Act and the relationships process where marriage has broken down. It is an endeavour, I believe, to help couples contemplating separation to take a second look at their intention, to evaluate what the costs may be—not just to them as parents perhaps but to the total family—and to really consider, if they decide to go ahead with separation, the best interests of the children and how their living arrangements as a couple can best fulfil their children’s needs. The committee inquiries were extensive, one being held on top of the other—one being social and practical and the other legal—and I have been privileged to be a part of both.

It surprises me to hear claims made that this has been a rushed process. This process has not been rushed at all. It has been a process of care and of consultation, with both sides of the parliament demonstrating their capacity to work together. It was only at the death knock, in the last few minutes, of this three-year examination that the shadow Attorney-General decided that, after reading about what was going on, she would lob on the table of the House a few comments of her own, which are quite at odds with members of her own party. The shadow Attorney-General has used this as an opportunity to make her mark, but she should reconsider whether any personal ambitions she may have are worth sacrificing the harmony and unity that we have had to this point. I was quite surprised to see a person with her knowledge, intelligence and experience rise to this occasion in such an inappropriate and unparliamentary way. It is inappropriate and not for the benefit of families throughout Australia—of children, of separating parents and of those who may reconcile after careful reconsideration—for her now to want to divide us on this issue and to move to a re-examination. That is what will come from this now—a re-examination by the Senate of all the work that has been done. The Senate will never accept anything that has been done in the House of Representatives.

Duncan Kerr (Denison, Australian Labor Party) Share this | Link to this | Hansard source

You agreed to that at the request of the Greens and the Democrats. Labor had nothing to do with it.

Alan Cadman (Mitchell, Liberal Party) Share this | Link to this | Hansard source

That has gone on in the Senate and I really think it is an inappropriate process. The member can rave, but the fact is that it is an inappropriate process. Work has been done on this issue and there should be no changes to the legislation. There should be no second-guessing the House of Representatives.

Duncan Kerr (Denison, Australian Labor Party) Share this | Link to this | Hansard source

I agree; it is highly inappropriate.

Bruce Scott (Maranoa, National Party) Share this | Link to this | Hansard source

The member for Denison will desist.

Alan Cadman (Mitchell, Liberal Party) Share this | Link to this | Hansard source

The House of Representatives stands supreme on this issue. I would defy the Senate, both by wit or by wisdom, to find one area that needs change. We have considered this at length over a three-year period. It does not need a second look. It does not need going over again. If there are failures on the part of the House with this issue, the Senate can revisit this act in a couple of years time. I would have thought that the Senate has plenty of committees and activity in which it likes to involve itself, without going to the extent of taking on the Family Law Amendment (Shared Parental Responsibility) Bill 2005. However, I know that the Attorney is very anxious to see this legislation passed. I will lend all strength I can to his arm to make sure that his way prevails and that there are no further amendments.

The fact is that we would not be here today discussing this if the court had listened to the House and the parliament in 1995 and 1996. The focus on children’s wellbeing was well considered by both houses at that time and substantial changes were made to the Family Law Act in 1995. But the court, with the chief justice, chose to go its own way, ignoring the wish of the people that had been expressed through this place. I think that was a very sad and a very irresponsible action of the court.

Am I criticising the court? I am perhaps criticising former members of the court, because I think that they approached the Family Law Act in a blinkered way—a way which is the most legalistic and codified of any family law anywhere on earth. Most countries have a more conciliatory approach, which would like to bring people together to solve their problems and turn back on them the responsibility for solving their family problems, rather than having a court, in a legal environment—cold, clinical, calculating—trying to deal with emotional and subjective issues. That is what Australian family law courts have been doing, and it is not appropriate that they should continue.

The House of Representatives committee unanimously recommended that the Family Court be taken out of this process and that a tribunal with a lower standard of proof and a more informal process, without lawyers, be established so that the needs of children can be carefully considered, much in the way that other tribunals—whether they be social security, immigration or others—are considered a different environment from that of a formal superior court.

But Australia and the judges have wasted 10 years. Families over that period of time might have been capable of reconciliation. They might have been able to make different arrangements. They might not have been forced into the dreadful 80-20 formula that is so much part of the ethos of the Family Court—where husbands go or do not go to court, having been told that they will see the children for 20 per cent of the time, which is every second weekend and half of the school holidays, and that the formula for payment is 60-40, fifty-fifty or whatever the formula happens to be—instead of dealing with the issue of children first of all and solving their problems. Beyond the separation, both partners remain parents, and their responsibilities can only be given up by the conscious decision of them both. Mostly, they do not want that to occur. Certainly it may be that a proportion of families, males and females, do not want any further association with their children. That is a tragedy. It happens, but we need to try to prevent it to the maximum degree possible.

This is a complete package. The changes to the Family Law Act are extensive. But the fact of the matter is that, despite the attempts of the shadow Attorney to waylay and put off track this most important issue—she has come forward with some modifications that enhance the process—the government has seen fit to reject her bid to reverse the requirement that an apprehension of family violence be reasonable.

One of the sore points of all the inquiries that I have been involved in has been that nobody in the Family Court is capable of understanding whether a threat of violence or violence has actually occurred, because the violence and assault processes are a matter for the courts of the states. So the federal establishment of the Family Court has made it not possible to go beyond the point of federal law. It is now a requirement of this proposed act—and it is a requirement that the government intends to adhere to—that the apprehension of family violence must be seen to be reasonable, in that there is a real chance that violence has occurred, and it must be a provable process. It could be a thought or even an invention—and we heard in many cases that it is possible to concoct a process whereby access is denied for an unreasonable claim of violence.

We had one instance I remember of grandparents, a lovely couple, who did not even go as far as the front gate of their ex-daughter-in-law’s home in an endeavour to see their grandchildren. She was down to the local police station with a claim of apprehended violence, and an AVO was put out. So the grandparents—a retired clergyman, mind you, and his missus—trying to see their grandchildren were claimed to be violent and so were barred from seeing their grandchildren. Those are the sorts of things that the court needs to ascertain for itself. The court admits in evidence that it has not been able to do so. Yet we have the shadow Attorney-General wanting to remove a requirement that they should investigate violence, come to a conclusion and make a decision on the fact of whether or not violence had occurred.

There is also a bid by the shadow Attorney-General to remove the requirement for parties to make a genuine effort to resolve their dispute in mediation. What could be more reasonable than asking them to make a genuine effort? Part of the time something flares up and there is no reasonable effort to get back together. Many a couple have said to me and many an individual has said to me, ‘If only I had known what was in this, I would not be pursuing it. Now I’m in the courts, it has cost me a lot of dough and my lawyer’s asking for more money. How do I get out of this or how do I win the case? How do I force them to pay so that I do not owe so much money to my lawyers?’ Those are the comments of so many that have come to my office wanting relief from the dreadful process of Family Court.

It reminds me of the Dickens novel on chancery and how people are trapped into a system for year after year after year, trying to resolve a situation, and the court keeps them locked up or the other party keeps them locked in there for an interminable time. There must be a genuine effort to resolve disputes by mediation and that is a critical factor that must remain in the bill.

There is a proposal to reverse the move to equally shared parental responsibility, but nothing could be more sensible than that. Nothing is better designed to resolve the bitterness and hatred in the relationships that adults may have between them than to have—as most courts of the world require—them focus on the needs of the children and not have the court intervene with some formula or some prescription which a judge in a subjective manner needs to apply. The judges do not like it because they have to use a subjective approach rather than a legal approach. There are no laws written which can indicate how you assess people’s attitudes. We do not legislate for attitude. So there must be a genuine effort and there must also be a proposal that equally shared parental responsibility is part of the settlement process.

There is also a bid by the shadow Attorney-General to mandate the provision of information to separating couples encouraging them to go to court. The courts are not the solution and the more we can keep people away from the courts, the better the results will be. But here we have somebody who is legally trained seeking to put people back into court. I think it is a sad thing that the Australian Labor Party wants to do this.

These proposals are a very complete package. They include the provision of family relationship centres, which have some very specific roles to fulfil and a very important role in the whole process of dealing with separation. It is intended that the centres will assist a broad range of people with matters including premarriage education so that people understand what they are getting into and what relationships in marriage may mean. It does also mean that of course children have a much better opportunity to be brought up in a safe environment in a marriage rather than in a relationship. Couples are more likely to have children in a marriage than in a relationship and the children are often safer and more secure. It will provide for couples who have not separated but who are experiencing difficulties an opportunity for information and counselling. It is a very good early intervention process.

The family relationship centres will provide to separated or separating parents information, non-legal advice and dispute resolution services to help them reach agreement and to help them devise the basis of a parenting plan for the way in which they are going to provide for their children in the future. With the settlement of a parenting plan, the process then moves on to a conclusion and hopefully will not need to go to court. The court will require a parenting plan once it is established. Only in exceptional circumstances will the court not require a parenting plan. So a parenting plan is a pre-requisite of getting before the court, and the court can insist on a parenting plan. Grandparents and other extended family will also be encouraged to use centres, because they also carry the stress of seeing children damaged and torn apart as their parents separate.

There will be national standards for the centres. There will be consultation with all the stakeholders necessary, approved organisations and accreditations for dispute resolution practitioners, including rural outreach. The processes of family law, including the removal of children, have been considered by the Family Law Council. A number of issues are still to be resolved with regard to that, but generally speaking I would say that this legislation is far-sighted. I think some of the changes—such as the responsibility for equal share of decision making in regard to children and the need to consider, first up, the fact of equally shared time and the practicality of that process and then to grant, through a further rigour, requirements for access to the children and an intention to impose some penalties, some discipline, in the process of providing access, with the prospect of the person not providing access having to pay for all court costs—are far-sighted.

It would be my intention that this House consider to finetune the Family Law Act. We have wasted 10 years, forced on us by the Family Court of Australia—and probably by the personal attitudes of the former Chief Justice, not the current Chief Justice. This House will be watching very carefully the process through the current Family Court. I know that, should those on either side of this House detect any intention to subvert the purposes of this House, the laws will be further dealt with and strengthened—as we are doing this time.

My colleague Roger Price, from the electorate of Chifley, is really committed to this process. I saw him struggle when, in government, the Australian Labor Party sought to initiate changes, and I saw his disappointment when they were not brought to fruition. It is not the intention of this parliament, of members on this side or on the opposition side, to see the efforts that we have made on this occasion fall into futility, as they have in the past. It is our intention to monitor the process and to make sure that the changes that we think are beneficial, first of all, for children and then for separating couples and then for a more peaceful and harmonious relationship, if that is at all achievable on separation, are brought to a successful conclusion should they need further attention as time goes by.

Anthony Albanese (Grayndler, Australian Labor Party, Deputy Manager of Opposition Business in the House) Share this | Link to this | Hansard source

I rise to speak in favour of Labor’s amendment to the Family Law Amendment (Shared Parental Responsibility) Bill 2005. This bill is an extremely sensitive and personal one which will impact intimately on the lives of many Australian families. The bill represents a fundamental shift in family law. Labor generally supports many of the changes which encourage parental responsibility after a relationship breakdown. It is appropriate that the bill focus on the best interests of children in these situations, rather than on perceived parental rights.

Efforts to reduce the trauma of separation and divorce for families with children are also welcome. However, there are still some important concerns which give rise to the amendment Labor is proposing. It seems to me that certain aspects of this bill have not been completely thought through and are therefore based on certain assumptions about the behaviour of separating or divorcing couples and their ability to be reasonable in what is a truly extraordinary situation. Yet the implications of this family law bill will make life-changing differences for Australian children. If aspects of the legislation contain gaps, we will potentially create enormous problems and further heartache during what is already an extremely difficult time for families.

Legislation is only as good as its weakest link and, in providing a framework for separating and divorcing parents to work within, we must ensure that we do not trap vulnerable people in situations that are damaging or even dangerous. I would like to firstly draw attention to the considerations of shared parenting responsibility and the requirement to consider shared parenting time. Ideally, children would have equal contact with both parents. That is a gut instinct which is hard to demur from. However, we do not live in an ideal world. Of paramount importance must be consideration of factors that would make it not in the child’s best interests in all cases. While no divorcing parent would want to compromise the best interests of their child, the risk in shared parenting time is of turning the child’s life into a quantitatively divisible entity. Time, financial support and even living arrangements are tangible and divisible. However, the impact of these in a child’s psychological and emotional development cannot be so easily quantified or organised.

I am a father and I love my son. I miss him each and every night I am not at home. The biggest sacrifice that a politician makes is the number of nights we have to spend away from our families. I think that practical reality gives us just a small portion of insight into the difficult emotional trauma which separation causes. But let us consider the disruptive impact of splitting time equally between two parents who are separated or divorced: two houses, two bedrooms, two sets of toys, two places to stay, two neighbourhoods, two routines to establish. We talk about creating shared parenting, but we do not want to create a situation where children’s lives become part of a timetable, making children rotate from one house to another, from one bedroom to another, from one routine to another. The impact that so much change and transience can have on children must be considered, particularly since the emotional and psychological effects of shared parenting arrangements can be less obvious.

It may well be that in some cases shared parenting in two houses works in a way which is consistent with the best interests of the child. If that is the case, then I am all for it—that is the ideal—but only if it is in the interests of the child. Two houses can mean two sets of rules and possibly even two completely different ways of life. In the case of less amicable divorces, a child could spend his time in two houses in which completely different ideas about life, family, behaviour, expectations and habits are nurtured.

Shared parenting responsibility assumes that at least a certain level of collaboration and cooperation will continue post divorce, yet this clearly will not always be the case. What happens when this breaks down in the most extreme of ways and children are made to spend equal amounts of significant time with parents who oppose each other in every way, including the way they raise their children? It is also not unreasonable to imagine that children could suffer as a result of the complex emotional tug of war that occurs between parents in situations such as these.

Concerning the introduction of compulsory mediation, in theory I believe this change is a positive one. I do not think anyone would oppose moves that aim to make separation and divorce as smooth as possible and with as little litigation and hostility as possible. That is the ideal. But we must not fool ourselves about the reality. The trauma of a separation or divorce can make even the most reasonable people act unreasonably and even the most amicable of divorces can be excruciatingly difficult.  

Certainly for some the compulsory mediation process will be helpful; for others, however, it will be just the opposite—yet another occasion for hostility, a further reinforcement and refuelling of emotions that are already running high. I am also concerned that compulsory mediation will force some parents into negotiations with people whom they have come to fear or feel intimidated by.

Central to the family law system reforms is the establishment of family relationship centres, a one-stop shop that will provide information, advice and mediation services. Such centres clearly have been conceived with the best of intentions; however, they require proper implementation, funding, tendering processes and training programs for the staff who will work there. Indeed, the success of family relationship centres will rely on the provision of high-quality service which is properly resourced.

Unfortunately, the bill in its current form does not discuss many of these aspects in detail. Worryingly, key issues such as the accreditation of family relationship centres, quality assurance, accountability and protocols for screening for violence are not dealt with in detail in this bill. We are told that the detail is in the regulations, but they are not yet available. It appears that, unlike the current situation, FRCs will not need to be members of industry representative bodies. This eliminates a level of quality assurance and leaves room for organisations with political agendas to be the first point of contact for people who are already in a fragile state of mind. Who will monitor these bodies and determine the appropriateness of their outcomes? At the very least, all FRCs should be required to have all mediators trained and accredited in domestic violence competencies. Here we have the cart before the horse. We are debating legislative changes without any detail. We have to rely on the government to introduce regulations as we go. This is simply not good enough. People’s lives could be put at risk if correct processes are not put in place now.

Another key concern about the mediation process, and one that is particularly relevant to my electorate of Grayndler, is how the process will cater for people from different cultural, linguistic and religious backgrounds. It is all very well to introduce compulsory mediation, but without appropriate language and cultural provisions and training such services would be effectively inaccessible to many people in my electorate. Many of my constituents approach me with frustrations about accessing services such as Centrelink and legal centres. Imagine the potential for miscommunication and misunderstandings relating to language and culture that could arise in the context of relationship breakdowns and family separations. Those of us whose first language is English immediately take for granted our ability to communicate and navigate our way around our relationships, our daily lives and the social structures we move in. However, anyone who has been in my electorate would appreciate that things are not so easy for many people for whom English is not their first or even their second language or for people who come from different cultures.

It is also extremely important that adequate provisions are in place for Indigenous communities, where the rate of relationship breakdown and domestic violence is alarmingly high and where family relationship centres are most needed. A publication put out by the Queensland government entitled Aboriginal English in the courts refers specifically to the difficulties Aboriginal people experience due to the failures of the legal system to recognise the differences between Aboriginal English and Australian standard English. Simple things that we take for granted, such as the way questions are phrased and important nonverbal features of languages such as gestures, eye contact and silence, can be easily misinterpreted by standard English speakers who are unaware of the differences. This can lead to crucial communication breakdowns. I am concerned that such difficulties, if not identified and addressed in training the staff of family relationship centres, could be problematic for Indigenous people as well as for people from other cultures.

What provisions are in place to ensure that people of other language backgrounds can have access to interpreters or to counsellors who speak their language? What appropriate training will there be for staff to help them understand cultural differences which may be highly sensitive and salient in the context of relationships, divorce and even identifying domestic violence? Where will these important considerations be addressed? And what of the other unanswered questions, such as the issue of quality assurance for these centres? I understand there will be no complaints mechanism in place. What processes will ensure the accountability of these centres or will we see more management disasters similar to those that the Attorney-General presided over during his time in the immigration portfolio? If the best interests of the child are really at heart, then it is unacceptable that these questions remain unanswered before the establishment of mediation and family relationship centres.

The proposed changes to the nature and status of parenting plans are also concerning. Substantially increasing the role of these plans without amendments in place, such as a seven-day cooling off period and provisions to invalidate parenting plans if made under threat, duress, coercion or manipulation, are vitally important to protect all involved in the plans. Once again, no-one would object to parenting plans. They are of course a good idea. But we have to get them right, and we have to do that based upon reality rather than a utopian view which pretends that these situations are not by their very nature emotional, difficult and very traumatic. These safeguards need to be introduced if we are serious about acting in the best interests of children. Concerning also is the lack of legislated financial support for this mediation. Labor proposes that three hours of free mediation must be written into the legislation.

Another shortcoming of the bill in its current form relates to safety in the case of violent relationships and screening for domestic violence. Here Labor has proposed amendments that would make safety a priority, including a clear exemption from face-to-face mediation for those in violent relationships and proper screening and protection from coercion and intimidation when making parenting plans. The screening and identification of domestic violence is imperative. Statistics show that most women do not disclose domestic violence. For this reason it is vitally important that strategies be developed and implemented to overcome the issue of nondisclosure of violence prior to and during mediation.

When I have had representations from women who work with the Indigenous community in my electorate, they are particularly conscious that some communities are less likely to report domestic violence than others. The Indigenous community is one in which sadly that is the case. Community groups in my electorate have approached me expressing their grave concerns about the lack of thought that has gone into this aspect of the proposed legislation. Marrickville Legal Centre witness daily the web of difficulties encountered by women in violent relationships. Women present at their office scared, intimidated and deflated but still do not feel they can report domestic violence. They are concerned that some women could see mediation as a further barrier to reporting violence. Indeed, it is difficult to see how forced mediation would be appropriate in cases like these without any practical screening mechanisms in place. There is also a concern that mediation could be seen inappropriately by women as a platform on which to address domestic violence. This is clearly not the purpose of mediation as specified in this bill.

Greater attention to domestic violence and the dynamics of abuse is clearly required. Twenty-three per cent of women who have been married or in a de facto relationship have experienced violence—that is, one in four women have experienced domestic violence. That is a shameful figure. Every child in these relationships, too, is a victim of domestic violence either directly or as a witness to that violence. Despite this, the government has insisted on changing the definition of ‘family violence’. This bill amends the definition of family violence to require the victim:

... reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

Clearly, what is reasonable for one person is not necessarily reasonable for another. A woman who has been caught in a violent relationship may find herself having to prove that an incident is threatening and fearful to her, yet she may find it difficult to even talk about the nature of these incidents or of her relationship. Again, cultural factors must be taken in consideration. Introducing a ‘reasonable’ test sends the wrong message to the community about the use and experience of violence. This bill has the potential to move us backwards, decriminalising domestic violence by failing to identify it and address it appropriately in screening processes prior to mediation. A sad consequence will be that in many instances domestic violence will not be identified. This will in turn lead to the victim’s experience of violence not being properly factored into decision making.

Labor proposes that the current definition of ‘family violence’ should be adopted. The so-called objective test the government has introduced makes it even more difficult for women alleging domestic violence to come forward. A so-called objective test will not take into consideration the personal circumstances of the victim. Couple this with the false allegations provision, whereby the courts are required to order costs against parties who knowingly make false allegations or statements, and we have a real problem. Family violence can be notoriously difficult to prove. This provision is a further disincentive for women not to report domestic violence for fear they will face a penalty if they are unable to substantiate their allegations. As suggested in Labor’s amendment, an exemption from face-to-face mediation in violent relationships and proper screening for violent cases must be adopted.

It is widely known that there is already a problem of false denial of violence by abused women. The fact is that the underreporting of domestic violence is a much bigger problem than the false allegations. I do not suggest for one second that false allegations have not been made, and that is a tragedy for the person the allegations are made against. But it is the role of government to look at the overall impact of its legislation. The truth is that you would think, from the way that the government has framed this legislation, that the biggest problem is false allegations rather than underreporting. It is just not the case.

As Labor suggest in our amendments, this bill must maintain the current definition of ‘family violence’ and also include circumstances in which a child witnesses or is exposed to violence. We also believe that the provisions concerning cost penalties for false allegations of violence should be deleted. In the end, the amendment Labor is proposing go to the heart of what this bill should be about: protecting and ensuring the best interests of the child, safeguarding all parties involved and providing comprehensive, accountable services which are accessible to all.

No-one wants families to break down. No-one wants separation and divorce to be more difficult than it already is. Nobody wants to see any child suffer. And nobody wants people to have to go into unnecessary litigation if other alternatives are valid. But we must not simply legislate for the best-case scenario, hoping that by setting a good example the most dire cases will simply follow suit or somehow fall into place. It is arrogant, short-sighted and simply wrong to fail to provide appropriate support for people of different cultural and linguistic backgrounds. It is not good enough to do anything other than all in our power to stop domestic violence.

I commend Labor’s amendment to the bill. I commend those members of parliament who have worked very hard on these issues, a very challenging area of government legislation. I think people on both sides of the House have attempted to address this in good faith. But there are weaknesses in this legislation. We need to get it right from the beginning because the consequences of getting it wrong will have a dramatic impact on the parties who are separating or divorcing—and, most importantly, on children in these situations. It is a tragedy that if you look at difficulties people have later in life you can often see that they experienced difficulties while they were children. That is why we need to get it right. I support Labor’s amendment to the bill and commend the bill to the House.

Mal Washer (Moore, Liberal Party) Share this | Link to this | Hansard source

I assure the member for Grayndler that I share his concerns. We would not want to miss those things. I am lucky to have a family relationship centre nominated for my electorate because of the demographics. I can assure you that high-calibre people will be recruited to these centres, to overcome as much as possible the difficulties you expressed. Certainly I share those concerns, so I empathise.

The amendments proposed in Family Law Amendment (Shared Parental Responsibility) Bill 2005 are perhaps the most significant changes to be made to family law in 30 years. They propose a complete cultural shift in how family breakdowns are managed by shifting the focus away from litigation to focusing on what is most important: the children. This bill reflects the government’s determination to ensure the right of children to grow up in a safe, supportive environment, involving both parents if possible. It also places an emphasis on the protection of children from family violence.

The bill introduces changes such as a new presumption of equal shared parental responsibility, with both parents playing a role in the major long-term decisions involving their children; makes the right of the child to know their parents and be protected from harm primary factors in decisions; requires parents to attend family dispute resolution and make a genuine effort to resolve the dispute before taking it to court; gives courts a greater range of powers to deal with people who breach parenting orders, with penalties such as make up time and compensation; requires the courts to take into account parents who fail their responsibilities, such as not paying child support or not turning up for contact handover; amends the existing definition of family violence to make clear that a fear or apprehension of violence must be reasonable; provides a less adversarial approach in all child related proceedings; and better recognises the interests of the child in spending time with grandparents and other relatives.

Crucially, the bill also addresses the issue of time. Time is our most precious resource—parents fight about it, courts divvy it up and children long for it. It is an essential element in developing a warm and emotional connection with our children. Time is subjective of course; however, with the laws we need to quantify it by stating that we require the courts to consider whether a child can practically spend equal time—fifty-fifty—with both parents. That is essential. If this is not practical then the courts must consider substantial and significant time, including day-to-day routines. If children can maintain ongoing and frequent contact with both parents then there is a much greater opportunity for different experiences of time.

What do I mean by different experiences of time? Overnight stays allow for the mundane, everyday experiences such as putting the children to bed, reading the bedtime story, getting ready for the day together. Any parent can tell you that these times can provide the moments that really count in connecting with their child. The one-on-one time together helping with homework, chatting about their day while driving in the car—these times can make a child feel that they really matter to you. The outdoor time spent together, such as fishing or gardening, gives parents the chance to mentor and remain in touch with their children. The ‘being in the moment’ time, as described by Bruce Smyth in his article entitled ‘Time to rethink time’ is the most critical. It is the unstructured, spontaneous and intimate time that can occur, usually during these most mundane times, when a child tells a parent what is most important to them and what is going on in their lives, which matters most. This fluid, meaningful time cannot be scheduled; it needs to be cultivated. Parenting arrangements that involve thin slices of parent-child time do not allow the experience of ‘being in the moment’ time as they simply do not provide enough natural time spent together.

This bill aims to enable both parents to experience this natural time with their children. It is not only the Family Law Act that is being changed but the whole family law system. This bill forms one part of a package designed to support these overall changes in the system. This $397.2 million package will promote the involvement of both parents in their children’s lives, reduce the impact of conflict on children and reduce the emotional and financial costs to families and the community of relationship breakdown.

The package includes the establishment of 65 family relationship centres—one of the first, as I said, will be in my electorate; more contact orders programs; more children contact services; expanded dispute resolution services; family conferencing involving grandparents; community education; and additional funding for existing and new family services.

This bill is the result of many years of work by a large number of people. It implements a significant number of the recommendations of the Every picture tells a story report prepared by the House of Representatives Standing Committee on Family and Community Affairs. The committee travelled the nation conducting public hearings and read over 1,700 written submissions to produce a 240-page report. Overwhelmingly members of the committee heard a call for far reaching reform of the current system, especially from fathers.

Currently there are six broad patterns of father-child contact after family breakdown. Thirty-four per cent of children have standard contact; that is, children see their non-residential parent each or every other weekend. Twenty-six per cent of children have little contact—less than once a year—or no contact with their non-residential parent. Sixteen per cent of children have daytime contact only. Ten per cent of children see their non-residential parent only during school holidays. Seven per cent have occasional contact by seeing their non-residential parent every three to six months. And six per cent of kids have equal or near equal care by being with either parent for at least 30 per cent of nights during the year.

Fathers often feel that what time they have to spend with their children is stilted, shallow, artificial and brief. Residential mothers and non-residential fathers differed markedly in their level of satisfaction with the amount of father-child contact. Data from the Household, Income and Labour Dynamics in Australia Survey found that 55 per cent of residential mothers believe that the amount of contact time is about right and that 57 per cent of non-residential fathers in the same sample felt that it was nowhere near enough. These samples of men and women were independent of one another.

As mentioned previously, what seems to be important is not just time but the subjective experience of time, the type of contact a father has with his child. Non-resident fathers are most satisfied as the type of contact becomes qualitatively richer, such as with contact involving overnight stays. There are critical patches in time that allow children and parents to connect in deeper and more meaningful ways. I believe that this bill will help more separated parents experience this.

Kelly Hoare (Charlton, Australian Labor Party) Share this | Link to this | Hansard source

One of the more distressing issues which confront us as parliamentarians is that involving family law and family breakdown. As with most issues, we mainly see the more extreme cases. It is a difficult reality to accept that two people who had fallen in love and had made a decision to spend the rest of their lives together and have children could end up sometimes in a truly acrimonious breakdown in that relationship. It must be noted, though, as we only see the more extreme cases of family breakdown, that 94 per cent of family law disputes filed in the Family Court are resolved without adjudication by a judge and the parties to the dispute come to an agreement out of court. It is the issues raised in the cases which are highlighted in the courts which we as legislators have to address.

The Family Law Amendment (Shared Parental Responsibility) Bill 2005 is a major reform of the Family Law Act, which has been the subject of reviews and overhauls since it was introduced by the Whitlam Labor government in 1975. The Family Law Act mainly deals with the processes and principles used to resolve disputes between separating couples over children and property. Under the act, disputes can be resolved by the Family Court, the Federal Magistrates Court or mediation.

The proposals which the government is wanting us to support here today have evolved from an inquiry conducted by the House of Representatives Standing Committee on Family and Community Affairs. The then Attorney-General and Minister for Children and Youth Affairs tasked the committee as follows:

... inquire into, report on and make recommendations for action:

(a)

given that the best interests of the child are the paramount consideration:

(i)

what other factors should be taken into account in deciding the respective time each parent should spend with their children post separation, in particular whether there should be a presumption that children will spend equal time with each parent and, if so, in what circumstances such a presumption could be rebutted; and

(ii)

in what circumstances a court should order that children of separated parents have contact with other persons, including their grandparents ...

The result of this inquiry was the 29 recommendations in the report called Every picture tells a story. These recommendations included the rejection of a rebuttable presumption of fifty-fifty shared parenting time; the adoption of a rebuttable presumption of shared parenting responsibility; the adoption of a rebuttable presumption against shared parenting responsibility in cases involving violence; compulsory pre-litigation mediation; the establishment of a single national one-stop shop for family relationship services, including mediation services; increased resources for family services, especially the contact orders program; and the establishment of a families tribunal which would have the power to resolve disputes about parenting arrangements and about property matters where the parties agree to have disputes decided there. The tribunal would be non-adversarial with simple procedures. Its members would be professionals from the family relationships area—for example, counsellors and social workers—and lawyers would be permitted to appear only at the discretion of the tribunal. In parenting cases, the Family Court would continue to deal only with cases involving entrenched conflict, violence, abuse or drug abuse, enforcement of tribunal orders and the review of decisions of the tribunal on limited grounds.

The recommendations also included the establishment of an investigative arm, attached to the tribunal, to investigate allegations of abuse and violence; the creation of a single family law court, comprising both judges and magistrates; a requirement that legal practitioners in the area have an undergraduate degree in social sciences or dispute resolution methods; mandatory minimum financial penalties for first and second breaches of orders and compulsory consideration of a parenting order in favour of the other parent upon a third breach; the inclusion of specific recognition of grandparents and the right of children to have contact with their grandparents; and changes to the child support formula.

This bill does not seek to address all of the recommendations but does address a few. The bill introduces a rebuttable presumption of shared responsibility—not time, but responsibility—of both parents for their children. It also requires the court to consider equal, significant and substantial shared time with both parents. The difficulty with this is that, while there are many and varied family circumstances, the courts need to also consider what is reasonably practical, such as possible geographical distances between the parents. The best interests of the child must always be paramount.

This bill also introduces compulsory mediation before litigation, with limited exceptions such as where there has been violence in a relationship. Labor believes the protection of victims of violence does not go far enough, and the shadow Attorney-General has addressed those concerns in Labor’s amendment.

The bill introduces less adversarial court processes for cases involving children whereby the judge can direct procedures and more actively encourage the child’s paramount importance. It also provides the legislative basis for a major increase in family relationship services, with the establishment of 65 family relationship centres. Labor welcomed this initiative in the last budget, but our amendment goes to ensuring that the tender process for this is open, transparent and accountable. These centres can easily be corrupted if government ministers use their ideological bents to influence which organisations are awarded the tenders. We witnessed a forerunner to this just last week when the Minister for Health and Ageing, after being defeated in the RU486 debate, was rewarded with $60 million to allocate to church groups to provide abortion counselling.

Although there are serious concerns about how some aspects of the bill will operate, the reform package has a lot of positives—in particular, moving away from adversarial litigation over children and the $400 million directed towards support services. We will not obstruct these important initiatives, but we have moved our amendment to strengthen this legislation, and we urge the government to take up its suggestions. It is also an absolute imperative that these laws continue to be monitored and scrutinised.

There have been organisations and individuals who have expressed anger and frustration that Labor’s position may have been portrayed as an extreme pro-mother position. It is not, and I would like to clarify that. Let me point out that Labor does not intend in any way to undermine the main provisions of the legislation. The presumption of shared parental responsibility, the emphasis on mediation and the new procedures for children’s cases will all receive Labor’s support. The opposition simply believes that the issue of family violence, which occurs in a small minority of cases, must be taken seriously.

Labor has moved its amendment to the legislation. However, it is expected, given the government’s numbers in the House and the Senate, that the amendment will fail. When this occurs, Labor will support the government’s legislation, which means that the government’s policy relating to shared parental responsibility will come into effect.

Labor’s amendment is not based on an anti-men or a pro-women stance. It is only concerned with reducing the risks children may face if exposed to a parent who is violent. There is no distinction as to whether that violent parent is a man or a woman. At the end of the day, the amendment is about reducing a child’s exposure to violence by a violent parent. There is no suggestion that men are presumed to be violent or that they are inferior to women as parents. Most men and women are great parents, despite the difficulties that may exist between some mothers and fathers. As parents, our main responsibility is and must be the care of and love for our children.

The rationale behind Labor’s position is based on the fact that some marriages end because of violence or behaviour that creates an inappropriate environment for the upbringing of children. In these situations, it would be wrong for the court to start its consideration of the custody arrangements from the position where either parent, including one who is placing their child at risk, has an equal right to have full or shared custody rights, when in doing so the child will be exposed to possible danger.

The one responsibility we have to our children is to protect them from danger. No child asks to be born, and there is nothing that distresses me more than seeing abused and frightened children. We must remember that these situations are, thankfully, rare. There is not a situation where men are presumed to be violent. When frivolous or vexatious claims of violence are made against a parent by the other party in a custody dispute, it is for the court to determine the veracity of such a claim. Whilst the court does get it wrong sometimes, it does not start from a position which presumes that the mother is the better parent. The government must do more to ensure that the court is in a better position to get these decisions right.

Some have said that shared parental responsibility is ‘a meaningless, obscure and misleading term that will only create further confusion for separating parents on the whole’ and that it ‘also has done nothing to influence real shared responsibility in regard to financial responsibility’. This is a very important point. The government’s changes will do nothing to change the arrangements governing the financial responsibilities of parents. These measures are only concerned with the amount of time children spend with their parents.

The government only yesterday finally announced its changes to the child support system, as put forward in the Parkinson report, which will primarily benefit non-custodial fathers with respect to their child support liabilities. Labor has been calling on the government to respond to the recommendations of this report.

I do appreciate the hurt and frustration that non-custodial fathers feel when they believe that they are denied the opportunity to extend their love and affection to their children and to share in that of their children without requiring the permission of the mother. It will always be difficult to determine which parent has majority care, and in most cases neither parent is happy with the outcome.

On the other hand, many organisations and individuals have contacted me regarding the minimal amount of protection for domestic violence victims in this legislation—indeed, it may put some further at risk. I appreciate their concerns and note the views that the proposed measures will impact on the lives of children in ways that no adult would tolerate on an ongoing basis and which may increase the risk of further violence and abuse to women and children escaping from violent relationships. I am alarmed at figures recently drawn to my attention concerning the continuing unacceptable violence to which women and their children are exposed. I am horrified that some 34 per cent of women who have been partnered have been subject to domestic violence and that 99 women and children died in 2002-03 as a result of domestic violence. We are particularly concerned that the proposed legislation does not provide for sufficient protection for the safety of children and parents from violence and abuse.

Another issue which arises in this discussion is the access to justice and legal aid. Access to justice should be provided to all who need it. Unfortunately, as is the way of things under this government, access to justice would appear to be available only to those capable of spending a large amount of money on lawyers. The Howard government slashed legal aid funding and introduced changes to the funding formula back in 1997. Despite being warned of the major impact this would have on ordinary Australians receiving access to legal assistance, the government has repeatedly refused to return to a cooperative funding model with the states and territories.

A recent Senate committee inquiry recommended that the government increase as a matter of urgency the level of funding available for family law matters. Grave injustices have resulted because of the inadequate level of legal aid funding available. In 2002-03 the government spent over $146 million on its own legal advice. Obtaining information about this expenditure is very difficult—the government is reluctant to advertise this extraordinary cost to the taxpayer. Interestingly, the amount of legal aid made available to the entire Australian population for the same year was $120 million.

Hopefully the move away from adversarial litigation, which is enhanced in this legislation, will eliminate some of these challenges, but more will need to be done. It cannot be denied that these very personal issues can inspire hatred and other strong emotions between the parties. What may seem commonsense to one party may appear completely irrational to the other. There is plenty to be done to continue to improve the operation of the family law system to assist families facing separation. However, as the circumstances of families vary widely, it will not necessarily be in the best interests of children to change the way in which both parties are able to make or defend claims. Fixing the family law system will never be easy. It will never be possible to please all the people who get caught up in it. But improvements are possible and, with the recommendations of the parliamentary committee, it is clear there are areas where reform can take place.

Ken Ticehurst (Dobell, Liberal Party) Share this | Link to this | Hansard source

I raised this issue in our party room back in September 2002 after coming across two cases where men had committed suicide on Father’s Day because of the unfairness they faced in the system that existed. My attention was drawn to the plight of other fathers, mothers and grandparents who were also suffering needlessly from a ruthless family law system. I came across a Mr Tony Miller, who had formed an organisation called dids—Dads in Distress. Tony told me that 2,500 men a year were committing suicide because they could not get access to their children. I formed an informal backbench committee with some colleagues to pressure the Prime Minister and cabinet for a formal government committee to address the need for family law reform and to overhaul the whole child support system. Four years on, after lots of lobbying, local forums and hundreds of submissions from local residents, the federal government is undertaking the most significant changes to the family law system in 30 years.

The Family Law Amendment (Shared Parental Responsibility) Bill 2005 is part of the government’s bold new reform agenda in family law. The legislation complements the package of messages announced in the 2005 budget, amounting to $397 million over four years. These reforms are great news for families in my electorate of Dobell and indeed across Australia. Once fully implemented, they will bring about some equity in the system, possibly making it one of the fairest systems in the world and improving the quality of life for thousands of broken Australian families. Society has a responsibility to support mothers and fathers, irrespective of their marital status, in fulfilling their roles as effective parents. This is the premise of the Australian government’s family law reforms after all. The strength of our families will determine our children’s futures and the future of our nation.

This bill introduces a new presumption of equal shared parental responsibility. It is not about halving time, although access is a major issue; it is about sharing responsibility. This involves a requirement that parents consult one another before making major long-term decisions on issues such as where the child goes to school, present and future education, major health issues, religious and cultural upbringing, change of surname and usual place of residence. This should be in the form of a parenting plan. Joint custody is a means to an end and not an end in itself. The end is the opportunity for children to know and to have a relationship with both of their parents. This should only happen where the relationship enriches the child. It certainly should not happen when it harms the child. This bill requires that the court consider whether the child spending equal time with both parents is reasonably practical and in the best interests of the child. If it is not appropriate, the court must consider substantial and significant time, including day-to-day routine, and not just weekends or holidays.

While there will always be exceptions, many parents want better access arrangements. They want to meet their responsibilities and they want to do the right thing by their kids. I am hopeful that this legislation will facilitate that. The proposed new system is deliberately less legalistic and more child focused. It reduces the role of the courts by requiring parents to attend family dispute resolution and make a genuine effort to resolve a dispute before taking a parenting matter to court. A less adversarial approach relies on active management of matters by judicial officers and ensures that proceedings are managed in a way that considers the impacts of the proceedings themselves—not just the outcome of the proceedings—on the child. This will promote the best interests of the child by encouraging parents to focus on their parenting responsibilities.

At the same time the bill strengthens existing enforcement provisions by giving the courts a wider range of powers, including ‘make-up’ time and compensation to deal with people who breach parenting orders and who fail to fulfil their major responsibilities—for example, failing to pay child support.

It is important to note that the proposed reforms in this bill will not create further barriers to women and children escaping from domestic violence and child abuse or further discourage the disclosure of violence and abuse. There is a new object to make it clear that children need to be protected not only from direct harm but also where that harm comes from being exposed to family violence against others. The requirement to attend family dispute resolution and the presumption of equal shared parenting responsibility will not apply if there is a risk of child abuse or family violence. In cases where the presumption will not apply, the court will not be obliged to consider the matter of the child spending substantial time with both parents.

The existing definition of family violence is amended to include a requirement of reasonableness, but only in relation to a fear or apprehension of violence. The change does not mean that there is a requirement for reasonableness for violence that has actually occurred or that any violence is acceptable.

I think all members acknowledge the role of grandparents and families affected by separation. I have held several family law forums over the years and met with many grandparents heartbroken because of the current system. Even great-grandparents are affected by this. Recently the member for Berowra cited in the House research from the Institute of Family Studies which confirms the importance of grandparents in caring for children. I have 12 grandchildren myself, so I fully understand where he was coming from.

This role can be even more crucial in cases of separation. Grandparents can exercise a moderating and calming influence at times of great stress and uncertainty for families. This bill will see the role of grandparents better taken into consideration when family breakdown occurs. Parents will be encouraged to consider time spent with grandparents when developing a parenting plan and to include grandparents in mediation and family counselling activities. If the matter proceeds to court, the court will need to specifically consider the importance for the child of the relationship with grandparents.

The government will also be providing funding to legal aid commissions to enable them to provide an expanded dispute resolution process for grandparents seeking contact with their grandchildren. This government recognises the valuable contribution of grandparents to children’s lives. We are determined to assist them in making that contribution.

The Australian government’s bold family law reforms include $189 million to establish 65 family relationship centres across Australia, including one to service my area on the Central Coast. The centres will help families by providing help and advice on relationships. They will be the first port of call when families need to make their relationships stronger or when relationships end. The centres will be a visible entry point for the family law system which will provide some mediation services and refer families to appropriate services. They are not just for separating couples with children; they will be able to help couples without children, mothers, fathers, grandparents and children to get help, advice and support in dealing with family relationship issues. For example, if a couple are about to get married, the centres can provide information about premarriage education; if a relationship is having difficulty, the centre can help get information or assistance to help improve the relationship.

These initiatives represent a generational change in family law and aim to bring about a cultural shift in how family separation is managed—away from litigation and towards cooperation in parenting. The bill reflects the government’s determination to ensure the right of children to grow up in a safe environment with the love and support of both their parents, and places an emphasis on the protection of children without family violence.

The inquiry was not just about a better deal for fathers or mothers. It was about important social legislation affecting some of the most important and vulnerable people in our community—that is, our children. Children have a right to know and to be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have ever lived together. Children have a right of contact on a regular basis with both their parents and grandparents. They can have a stabilising effect in family break-ups. There are no simple solutions, no quick fixes. Each family is different and each child is different. It is not about maternal or paternal preferences. It is about the best interests of the child, and the issue must be approached on an individual basis.

The government hopes that these changes, including the new centres, will change the way people think about family relationships. Most importantly, the government hopes that through these changes more children will have a loving and healthy home environment, whether or not their mum and dad are together, to help them achieve their full potential.

John Murphy (Lowe, Australian Labor Party, Parliamentary Secretary to the Leader of the Opposition) Share this | Link to this | Hansard source

I rise this afternoon to speak on this most important bill, the Family Law Amendment (Shared Parental Responsibility) Bill 2005. My electorate office has been inundated with emails and other letters from parents suffering from the effects of divorce and with the dilemma of the current legal regime founded in the Family Court of Australia and the Child Support Agency. There is, in my view, true despair felt by those parents who are bitterly unhappy about the existing so-called ‘family’ and ‘child support’ laws and the way in which these laws are administered.

I could easily spend my 20 minutes reading from texts of some of the heart-wrenching letters that I have received from my constituents. During the debate on the Legal and Constitutional Affairs Standing Committee report on 14 September 2005, I read a letter to the Main Committee. This letter put the proposition succinctly that ‘equal shared parental responsibility’ does not mean ‘equal time’. Further, the submission stated:

It seems absolutely unfair to say to people that they have the burden of equal responsibility but not share in equal rights.

I can only agree with the views of my constituents who, over the last two weeks in particular, have come to me in the hope that I will speak against those advocates who seek to deny the access of parents to their children—particularly fathers, who statistically are hardest done by in family law proceedings. This is true in property orders as well as in the immediate issue of children’s custody.

In statistical terms, the mother of a child has always been favoured by the Family Court of Australia. I refer to the Family Court of Australia’s residence and contact orders under the category ‘Any application for children by outcome’ for the period 1994-95 to 2000-01. In percentage terms, the Family Court’s statistics for the period 2000-01 show that over 70 per cent of all residence order outcomes favour the mother. Just under 20 per cent of residence orders favour the father. In just 2.5 per cent of cases do mothers and fathers gain joint residence, with a further 4.2 per cent obtaining split residence.

I will not dwell upon the closely related issue of property orders, except to say that the percentages are frighteningly similar. The woman and mother can expect about 70 per cent of the matrimonial assets—that is, what is left after the lawyers get their cut—with the fathers getting roughly 25 to 30 per cent. In light of these facts and statistics, I believe the bias exhibited by the Family Court of Australia in its judgments is both perceived and real. Natural fathers are being ripped from their children. Fathers are effectively being rendered either financially destitute or bankrupt. Fathers from divorced relationships are driven to the worst excesses of despair and destitution, thanks to the persistent and deliberate policies latent within the Family Court of Australia and the Family Court of Western Australia.

I am indebted to a constituent, not of my electorate, who forwarded me a copy of the Daily Telegraph poll of 26 March 2004, which asked the question: which federal issue do you think needs the most attention in 2004? Mr Deputy Speaker, what do you think the answer was? Was it national security? Was it unemployment or the economy? Astonishingly, overwhelmingly the winner, at 60 per cent of those polled, was child custody. In my view, the government has not only failed miserably in this policy area but, with this bill, will ensure only the continued misery of parents, particularly fathers of children who are being systematically discriminated against by the Family Court of Australia and the Child Support Agency. Fathers are being made non-custodial parents while simultaneously having their assets ripped from their hands, and they are left legally powerless and penniless.

This shared parental responsibility bill is supposed to deal with the obvious biases against parents, particularly fathers, who are being dealt the most savage of blows by the legal system. I go so far as to say that, if left unchecked, this prevailing legal system will, with its apparent political agenda, destroy families. That appears to be the only real agenda of the policy makers—to destroy families and the institution of marriage. There is no policy rationale, in my view, that supports the view that the so-called ‘Family Court of Australia’ achieves anything other than the destruction of the family unit and the separation of children from their parents—most particularly, children from their fathers.

Clause 60B of the bill describes the objects of the part dealing with the principles of shared parental responsibility. Clause 60CA, under subdivision BA, prescribes, predictably, that ‘the best interests of the child’ shall be ‘paramount consideration’, reflecting Australia’s obligations as a signatory to the United Nations Declaration on the Rights of the Child. However, as is so commonly done with United Nations instruments, the signatory nation interprets its obligations in light of the prevailing morality of that culture. In Australia, this government perseveres with its culture of abnegation of its responsibility of subsidiarity. Simply, this government views itself as being above any political responsibilities to the people. The government needs to understand that it must serve the people and not expect the people to serve the government. We see that in clause 60CC the Family Court is directed statutorily as to how it is to determine what is in ‘the best interests of the child’. This provision contains—and forgive the pun, as none is intended—‘motherhood’ statements going to the primary and additional considerations of what is in the best interests of the child.

What is of critical note here is that the state—that is, the government—usurps for itself the statutory role of the parent for the purposes of determining what is in the best interests of the child. For example, provisions within the bill such as clause 68LA(5)(b) require the independent lawyer for the child to inform the court of the child’s views. Equally, the role of the children’s psychologists in speaking as if for the child creates a legal environment where the ‘best interests of the child’ is nothing more than a smokescreen for what is, in reality, the state’s determination based on its own laws of what it says is in the best interests of the child.

In reality, the ‘best interests of the child’ is a misnomer. What this really means in the culture of the Family Court of Australia is the state’s usurping of the natural rights of the parents in their procreative right to equal access to the child. It is the state that usurps the natural rights of the parents in having equal access to the child. It would be a scholastic task to review each of the orders of the Family Court of Australia. In 2000 to 2001 alone, the Family Court of Australia notes that there were a total 13,194 applications for residency orders.

Another favourite mantra is that ‘each case is determined on its individual merits’. One would be naive in the extreme to believe that each of these 13,194 applications for residency orders was determined on its merits to a point where there is a uniform consistency of some 70 per cent of all residency applications going in favour of the mother. One would be even more naive to believe that, given the residency orders have continued consistently to favour the mother each and every year from 1994 to the present time. Every year the figures vary from as high as nearly 74 per cent in favour of the mother in 1994-95 to the most current statistics available of just under 70 per cent for the year ended 2001.

I regret that I do not have more up-to-date figures, but what is telling is that the figures on residency orders remain statistically high in favour of the mother; there is no argument about that. The father is by far the loser. This wide disparity of residency orders cannot simply be due to, as we are led to believe, the incidence of violence by the father or acts of sexual or other impropriety. Even factoring in all those incidents, the statistics do not answer the question: why is there such a bias in favour of mothers for residency orders?

To answer this question, we need to look at the fundamental policy intent of this bill and the general provisions of the Family Law Act. I stated earlier that what this government would seek to make into legislation is far from being in the best interests of the child. In reality, the law, as put before this House today, is a smokescreen. In reality, this bill seeks to give shared parental responsibilities but not equal access to the children. Moreover, and critically, this bill seeks to retain the prevailing system embedded in those provisions I referred to earlier, where the state continues to usurp the natural rights of the parent.

It is the state that defines what the rights of the child are. This statutory definition does not accord with the natural law, as the law seeks to deny the child the right of equal access to their parents. I quote from Professor Don Boland of the Centre for Thomistic Studies in his 2000 text titled For the sake of children, in which he states:

The right of the child to have life from the love of its parents has been replaced by the right of the parents to have the child, if they choose to.

This statement is made in the procreative context. The Family Court’s jurisdiction, as stated in this bill and in the Family Law Act, is nothing more than a projection of this government, the state, usurping for itself the very power to decide the fate of the child at the expense of the parents.

Even more disturbingly, and again I cite Boland, what is lost in this government’s equation is any recognition of the natural procreative rights of the father and mother. It is worth citing the following passage from Boland’s text to highlight where this bill is leading Australian society today:

What does this mean for the child or issue of the union? Well, it is mostly not good news. There are some incidental side-effects that from some particular child’s point of view are good, such as the disappearance of the social and legal status of illegitimacy. Generally, however, the child loses not only its legitimacy within the family as a social and legal institution but also its very right to begin to be, let alone to be born, as a natural outcome of the life-long committed personal love of man and woman. It is simply not in the equation. “We will to make love”, but “we do not necessarily will to make what love makes”. The natural connection between sexual intercourse and human generation has been broken. The connection when now made will be purely voluntary”.

This quote, it is acknowledged, is within the issue of the law’s recognition of the sacred connection between love, marriage and procreation. It is in this context that the Family Law Act not only divorces two married people by legal process but seeks to divorce the natural rights and duties of the parents in having the immediate rights to rear and educate their children. It is in this context that the Family Law Act and this bill seek to continue to undermine, in my view, the nature of marriage and the indissoluble natural rights and duties of the parents, critically fathers, over their children. It is the role of both parents to have access to and residency with their children that is of paramount importance to the child, not what the state would make as a construct of that interest of the child.

Based on the Family Court’s own statistics, the ‘best interests of the child’ means armies of single mums living out there with children who have little or no access to their natural fathers. The ‘best interests of the child’ means the child being raised without their father at all in a high number of cases. I ask: how does this reality accord with the natural law? Again I remind the parliament that a law that does not accord with the natural law is no law at all. The current so-called Family Court regime—what should be properly called the ‘divorce court’—has decimated families, not solved problems in the best interests of the child. The real policy impact is to produce armies of single mums raising children who are separated physically, intellectually and emotionally from their fathers—often worsening, not bettering, the views of those children of their natural fathers.

Children are now pawns, sadly—weapons of the state to ensure that the parents’ assets and lives are torn apart for the benefit of those ideologists who would have us believe that this is a better system than the fault divorce system it replaced. Divorce is now a piece of paper. ‘Children’s rights’ and the ‘best interests of the child’ are nothing more than mantras to justify the persistent destruction of the family unit and in particular the interests of fathers, who are decimated by a system that is statistically and demonstrably biased to a very high degree, as I said earlier.

It has therefore come to the point where I must urge both houses of parliament to restore power to the hands of both parents in the rearing of a child. It is imperative, in my view, that the laws reflect the natural law, giving full recognition to the procreative and educational immediate rights of the parent over the state. I have said in earlier speeches in this House, as far back as 1999, that the state’s right to determine what is in the best interests of the child should be reserved only for situations of wards of state, where the parent or parents are either dead or intellectually incapable of fulfilling their obligations. That is my view. To have the court’s vision statutorily set by so-called children’s lawyers and shrinks is to deny the most basic rights of both parents in the natural and procreative functions of rearing, educating and nurturing their own issue.

I believe that this government violates the most basic interests and rights of all parents throughout Australia. Further, this law only serves to destroy civic society by attacking both family and marriage. This law seeks to deny the most basic natural rights of the parents, in particular fathers, and in doing so usurp for itself the power of a parent. As any person who has had the misfortune of having to go through the Family Court of Australia for a contravention order will tell you, the state makes a poor parent. The state could not care less. The state is impotent to prevent one parent contravening access or residency orders.

I believe there is little justice in our present system. Parents are driven to despair because the state, on the one hand, usurps for itself the immediate rights as a parent yet, on the other hand, does not have the immediate capacity to deal with the ever growing and embarrassing statistics on applications for contravention orders. Put another way, a piece of paper known as a contravention order means absolutely nothing on the ground.

The immediate issue and immediate rights lie with both parents having equal access to the children in all but the most dire circumstances. Sadly, this bill does not achieve that, for the bill not only preserves but enhances the powers of the state in determining access and residency. Unfortunately, based on the statistical history of the Family Court of Australia, it is clear that the bias against fathers and in favour of mothers will continue indefinitely. Therefore, this bill, in my view, is impotent. Until this government wakes up to the reality that its family law is in fundamental contradiction to the natural rights of both parents to rear and educate their children as a fundamental procreative right and restores such power to both parents, this government is doing no more than wasting our time in this House today with meaningless bills such as this, which can only serve to worsen the situation for those long-suffering parents, particularly fathers, who have had to suffer the horror and shame that is our current Family ‘Divorce’ Court of Australia.

Barry Wakelin (Grey, Liberal Party) Share this | Link to this | Hansard source

It is not my intention to speak on the Family Law Amendment (Shared Parental Responsibility) Bill 2005 at any great length, except to say that this is an important sequel to some very long discussions. When I first came to this place in 1993 it occupied a lot of our time. We were then in opposition and we regularly had up to 30 backbenchers involved in discussion to see what we could do. It has been a long story. We now have the work of two parliamentary committees in this particular parliament and we had the Andrews committee review of some parliaments ago. This bill is something that every member of parliament very much welcomes.

I have always felt—and I think that, in summing up a bill like this, there is an opportunity to say things like this—that the family law issue, particularly the Child Support Scheme, was one of the very fundamental intrusions into family life. It was ill conceived. It did not have a proper balance between the parents, whether they were mother or father, and it did seem to become somewhat gender biased. I do not know that anyone particularly sought to do that. Some did, but I do not know that the majority did. I think it was just the fashion of the times to endeavour to catch up and deal with the changes of Justice Murphy many years ago in terms of divorce and the subsequent rise in divorce rates et cetera. Now we have something like a 50 per cent breakdown in families, separation of parents, and the issues that result. I am advised that something like a million children—which is a very significant part of our population—are only living with, at best, one parent.

I believe that it was ill conceived, that it was a fundamental breach of individual rights and that, in a democracy, it lacked recourse—it was heavy-handed legislation. It really did create a lot of resentment. As if marriages, as if family separation, are not challenging enough in themselves! Particularly when there is a separation, the resultant sorting out of all of that is stressful enough without adding this quite draconian Child Support Scheme, which intruded in a way which many men, particularly, did not expect. Certainly they came to know it—they came to know it very well—but there was a lot of tragedy along the way. Certainly, in my view, it exacerbated the outcome for very many children.

Therefore, I welcome this bill today. As has been said by many, it will not be a perfect bill. When you are dealing with such difficult issues as family breakdown, the best interests of children and our court system, this will be an evolving issue. As we acknowledge, family law should be about fundamentally supporting our children. We acknowledge that it must respect the rights and, perhaps more importantly, the responsibilities of both parents. Fundamental to me is that, in this very challenging environment of high emotion, it must reduce adversarial advocacy to a minimum as much as possible. If ever there is a time for cool heads, for calm approaches, for conciliation, it is at a time of family breakdown. Therefore—and this challenges the traditional legal approach of adversarial legal practitioners—this is where the more negotiating style, the reconciliation approach, is far more important.

I welcome everything that is in this bill, because it does address a lot of the issues. I will not go over what has been covered in the second reading speech and by many other speakers. I would like to dedicate this bill to the very many members of parliament on both sides of this House who have put so much into trying to come to terms with very dynamic and evolving family and societal issues, particularly to Kay Hull, to Peter Slipper, to Minister Brough, to my colleague to my right, Paul Neville, who has had an abiding interest in this over many years—I know I should refer to these members by their seats, but my memory is not good enough—and certainly to someone like Roger Price.

Michael Hatton (Blaxland, Australian Labor Party) Share this | Link to this | Hansard source

I will excuse the member for Grey in this instance.

Barry Wakelin (Grey, Liberal Party) Share this | Link to this | Hansard source

To conclude: I dedicate this to those individuals whom I have known, having just named a few of them, to have put so much into this over many years. I particularly dedicate it to Australia’s children. They will be the beneficiaries. We as a parliament will be the better for it. Our electorate offices—with the appropriate legal support, the appropriate Public Service support and the appropriate family relationships support—will be involved from time to time. No doubt our electorate offices and our staff particularly will appreciate a mechanism whereby we can take as much of the angst as possible out of this vexed issue. I welcome the legislation and I wish it a speedy passage.

Sharon Grierson (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Family Law Amendment (Shared Parental Responsibility) Bill 2005 and to support the amendment put forward by the member for Gellibrand. This legislation introduces major changes to the Family Law Act, and much of it has been developed as part of the government’s response to the 2003 House of Representatives Standing Committee on Family and Community Affairs report Every picture tells a story. I understand from the Labor members who were part of that committee inquiry just how moving it was for the committee members, how involved they were and how determined they were to bring about change.

The key changes to be made under this legislation include introducing a presumption of shared parental responsibility; requiring the court to consider equal significant and substantial shared time with both parents; introducing compulsory mediation before litigation, with limited exceptions; introducing less adversarial court processes for cases involving children; promoting parenting plans, agreed between parents without lawyers; and providing the legislative basis for a major increase in family relationship services through the creation of 65 family relationship centres. I note and welcome that one family relationship centre is being established in my electorate of Newcastle. With a higher than state average divorce rate, it certainly is needed. The legislation also introduces other changes, including new penalties for noncompliance with orders, for vexatious complaints and for false allegations of domestic violence. We on this side of the House support the increased expenditure on family support services and the government’s attempt to respond to the issues raised in the Every picture tells a story report. However, we—and I certainly—have some reservations about this legislation which need to be examined.

Firstly, we must ensure that the tender process for the family relationship centres is open, transparent and accountable. I have some major reservations about the amount of outsourcing of services by this government to private service providers. As Deputy Chair of the Joint Committee of Public Accounts and Audit, I can assure the House that I have seen just how problematic in the delivery process many government contracts can be. We do not want a situation whereby a few major companies are competing with each other for potentially lucrative contracts, driving down costs but also driving down the quality of the service they provide. As a regional member, as the member for Newcastle, I do not want to see smaller local service providers cut out of the process, denying our community the local knowledge, experience, commitment and expertise that they bring. I have pointed out many times in this place the major problems we have found with contracts—for example, those let by the Department of Immigration and Multicultural Affairs for migrant services in my electorate. I think there are some lessons to be learned.

We need these family relationship centres to be properly supported and resourced, to be of very high quality, to be correctly placed and certainly to be adequately regulated. Quality is what we are after. We must also realise that these family relationship centres are not going to make up for the damage that the government is doing to family relationships with its policies in other areas—that is, measures like its completely family-unfriendly Work Choices legislation and its ongoing failure to make child care affordable and accessible to ordinary working families. Family relationship centres are a fair start, but there is so much more that the government could do to support family relationships before they break down or to prevent them breaking down.

So Labor does support the broad aims of the bill and we agree that parents should be encouraged to take more responsibility for their children. But it should never be just a case of dividing that shared time fifty-fifty. It is about dividing responsibility, it is about dividing and apportioning care on the ability to deliver that care in a sustained, responsible and loving way.

We support the prioritising of children’s needs following family breakdown. This has been and must continue to be a key concern. When we are dealing with children after family breakdown it always requires expertise—expert judges and expert counsellors. We cannot accept a lesser solution. Cases that proceed to the Family Court after all are the ones that in many ways present with multiple and complex issues. They are often entrenched, insoluble and the result of major disorders and dysfunctions. With this in mind, I am pleased to see the government has backed down and supported Labor’s call for family law to recognise parental obligations to children and not simply focus on parental rights.

As always, the member for Gellibrand has clinically examined the government’s legislation and shown how it can be improved. I would particularly like to acknowledge and thank her for her work on this legislation, and I am pleased to support the second reading amendment that she has proposed. In doing so, I would like to point out other reservations that I have with this legislation.

While I support the aim of encouraging involvement from both parents, children must always be the first consideration. We should therefore focus more on responsibilities and quality care, and less on parental rights and a division of time. Indeed, it appears that the government has been creating perhaps an unrealistic expectation that this legislation will create a right to equal parenting time. This legislation does not do that, and quite rightly so. There will never be, and can never be, a one-size-fits-all formula for dealing with relationship breakdowns and for dealing with the needs of children.

As an educator for 30 years and as a school principal for over 10 years, I have seen and dealt with the impact of family breakdown at the coalface. I know that simplistic, formulaic approaches do not work. I have seen outstanding parenting by all types of carers after family breakdowns, by actual blood parents, by grandparents, by single parents and by step-parents not at all related to the children and by both parents in the case of shared parents. But by the same token, I have seen heart-wrenching examples of terrible abuse and neglect of children by all those types of parents and guardians, whether it is mother, father, grandmother, aunty or step-parent. Those things happen and sadly it will always be a case of looking at the individual context and needs.

As I said, there is no formula. Children need love, care and security and our obligation to children is always immense. We just cannot reach for a calculator. Sadly, in our electorates, we do see cases where the calculator is very much out there, and it is often about gaining access to benefits—half a child equals half a benefit. That is the saddest type of approach to parenting.

One final note on Labor’s amendment is that it calls for these changes to be properly reviewed to ensure they are both effective and keeping up with societal change. This is sensible and it should be adopted. I welcome the government’s commitment to addressing family law issues through this legislation and I welcome the $400 million injection into support services, including the family relationship centres.

However, as I noted before, there is still room for improvement. I particularly have some reservations about the penalties for vexatious parents. I can understand that you do not want to discourage parents from coming forward with the thought of having to pay a penalty if there is a suspicion they are not doing it legitimately. That is perhaps not the right deterrent but certainly there should be some deterrent. I am not sure that this gets it right but I am not sure what the solution is.

In fact, when we look at some of the reservations and room for improvement, in my electorate of Newcastle all these legislative improvements will not redress the difficulties that exist for families bringing matters before the Newcastle Family Court registry. I would like once again to bring the House’s attention to an issue that I have been raising for quite some time—it is of great importance to my electorate—concerning the ongoing problem of the lack of a second Family Court judge in the Newcastle registry. I have raised this issue with the Attorney-General and with the administrators of the Family Court this year again and I would like to take the opportunity to express my appreciation to the Attorney-General for his consideration of this issue. In response to my representations and those of the legal community of Newcastle, he has shown a good understanding of the needs of our city. But what we want is a second judge. We want him to stamp his authority on this issue and deliver that second resident permanent judge to the Family Court registry in Newcastle. I note that representatives from Newcastle Law Society and Family Law Society will be meeting the Attorney-General this week to further discuss the need for a second permanent Family Court judge. I remain hopeful that once they have had a chance to put forward our region’s compelling case it will be looked upon favourably.

The Newcastle registry service is not only for families in my electorate. It serves the Hunter region. It also serves those in the Central Coast, in the south, in Kempsey to the north, Narrabri and Moree to the west and all points in between. It also serves the communities of Tamworth and Armidale where there are sittings of the Newcastle registry. Up until 1998 the Newcastle registry had two resident judges, but since one retired in that year it has been left with just one judge that is clearly and specifically appointed to our court.

It is clear that the amount of resources available to the Newcastle registry has distinctly fallen. In 1998 we had two resident judges and a full-time registrar. We now have one resident judge, two full-time federal magistrates and access to a minimal amount of registrar time. While it has been claimed that this amounts to an increase in total resourcing, I know from the legal fraternity and from constituents that two full-time judges are essential for the Newcastle registry. It is always the case that long, defended cases must be heard by a judge. The number of those cases, unfortunately, does not diminish in our region. Federal magistrates and Family Court registrars simply do not do that work.

To make up the shortfall, the Newcastle registry does receive some of the time of judges based in Sydney and Parramatta. However, this is clearly a second-rate option. It is expensive in terms of travel and accommodation for judges and staff and there is a feeling expressed by the legal community that these judges are often not as familiar with the culture of our region and certainly do not deliver the commitment to sitting times that is required. When they can get on a plane or a train or in a car and go back home to another city, that is what they do very frequently. It is also a second-rate option because it is clearly failing to provide the resources necessary for the caseload of the Newcastle registry.

The longer we have been without a second resident judge, the further behind our caseload has fallen. By late last year we found that matters being heard in Newcastle had actually commenced 25 months previously. That is over two years that families who are obviously already in significant distress are made to wait to have their matters heard. Anyone who has been in that situation knows that emotions just build. They do not improve and, certainly, time is often a complication for the way these things are settled.

By way of comparison, matters heard in the Parramatta registry were commenced only nine months previously. Why this disparity? The Parramatta registry, serving a population roughly double that of the Newcastle registry, last year had six resident judges—double the number of cases but six times as many resident judges. I have been informed that one of Paramatta’s judges has since been allocated to Brisbane. That does not make me feel any better. That does not help the families of Newcastle. It does not help the families of New South Wales outside Sydney, and it still leaves Parramatta five times overresourced compared to our registry. That judge should have been appointed to Newcastle.

I have also been informed that, while Newcastle was allocated an additional 20 weeks of judicial time in 2005-06, this will simply assist to bring the registry’s resources up to the current level of need. It will still take around three years to deal with the backlog of cases before it. The court cannot simply be focused on disposing of older cases, and indeed it is not policy to do so at the Newcastle registry. You cannot prioritise cases or find shortcuts to these. All cases before the court need to be assessed upon their needs and dealt with thoroughly and according to legal considerations. The backlog of cases in Newcastle has become so appalling that I am advised that many cases are now being filed in Parramatta or Sydney, where the delays are not so great. While this may look like a solution and it may be leading to figures that show a decrease in the number of new matters in Newcastle, it is not good policy to force families from almost the Queensland border to the Central Coast to have to travel to Sydney to have their matters dealt with.

The legislation before us will see extra resources being provided to the family relationship centres to be established in Newcastle. However, a family relationship centre will never be a substitute for a properly resourced Family Court registry. A family relationship centre is not going to help the families waiting over two years to have their matters heard in the Family Court. I certainly would not like to be in their shoes.

The region served by the Newcastle registry needs this service desperately. The 2001 census tells us that 13.1 per cent of families in Newcastle are sole parents with children, around 8,000 families have an income of less than $500 a week, 10 per cent of people are estimated to be living in poverty and there are 4,600 child support cases. In the areas around Newcastle—the rural areas of the Hunter, the mid-north coast and the tablelands area—these figures are similar if not worse.

I fully support the goals of the family relationship centres, but for those already in the system we need those extra judicial resources in the Newcastle registry of the Family Court. We need them for the future as well, because the state government has referred its powers over de facto relationship matters to the federal system. Parliament will be dealing with that legislation soon. That will certainly have a dramatic impact on increasing the caseload of the Family Court.

My electorate represents 17 per cent of the state population but has 19 per cent of all divorces. It is believed that we have a significantly higher proportion of de facto relationships as well. The Newcastle registry will also have to deal with the consequences of breakdowns in these relationships in the future.

The Federal Magistrates Court is also taking on an expanded role. It is already dealing with bankruptcy, with immigration, trade practices and administrative matters no doubt to follow. It is clear that the Newcastle registry’s workload will continue to increase. We must be ready to meet this challenge and provide the services that families across our region need.

In addition to the judicial resources I have referred to, we are also in need of extra physical resources in the shape of a new Federal Court building. As far back as 2002 warnings were being raised about the inappropriateness of the Federal Court facilities in Newcastle. I noted in the newspaper recently that Sydney’s Family Court building was being prepared for a $2 million facelift. If you have not been to the Sydney court, go and have a look. It reeks of leather and marble and wood. It is beautiful. Come to ours and you will see that we have only four courts and that our judges and magistrates have to walk across a public road and use a Supreme Court or state court in a different area of the precinct, which defies all security needs. You will also see lawyers trying to brief their clients in public areas. We have the highest incidence of attempts to bring in weapons through our secure areas, and we have been raising this for a long time.

It is now 2006 and the Newcastle courts have none of these ‘good access, good security, excellent facilities’ that I gather the Sydney Family Court is going to have, according to the Law Council of New South Wales. I understand that negotiations are currently under way for new purpose-built accommodation for both the Family Court and the Federal Magistrates Court in Newcastle. This is a welcome development, and it is long overdue. But I do have reservations again that any new building must be appropriate to meet the expected future growth of our courts. We do not want a bandaid solution. We currently have four courts available in Newcastle. I believe that if we were to move to accommodation that provided for, say, six courts, even this would be a stopgap measure with no room for expansion.

It is now apparent that the funding for this new accommodation—bigger, so obviously at a higher rent—has to come out of the Family Court’s existing budget. Their workload is increasing and their budget resources are going to be stretched, yet they have to pay for improvements in the Newcastle court out of their existing budget, with no separate budget allocation from this government. When I look at that surplus, I think, ‘My goodness, don’t give us a cheap, second-rate option; give us an option that is paid for by a special budget allocation to make sure we get the best facility that is possible that caters for present, future and expanding needs.’ When I talk about a Federal Court, it would be wonderful to think that a whole expansion of legal services in the federal magistracy would be built into our legal community. That is why a Federal Court would be most appropriate.

We need a specific budget allocation to allow for this improved accommodation so that cuts do not have to be made to the court’s other activities. We have two pressing needs for the families of Newcastle and of regional northern New South Wales. Our Family Court needs another permanent resident judge and we need improved, appropriate and better accommodation for our courts. I know that the Attorney-General is considering these arguments on their merits and I look forward to a successful outcome for my electorate. I sincerely believe that he wants to tick off on this one. While the legislation before us today is a step in the right direction to improve the family law system, it will not mean much to the people of Newcastle, the Hunter region, the North Coast and tablelands areas if our Family Court is not adequately resourced.

Paul Neville (Hinkler, National Party) Share this | Link to this | Hansard source

The reforms contained in the Family Law Amendment (Shared Parental Responsibility) Bill 2005 represent the most significant changes to the Family Law Act 1975 since its inception 30 years ago. They will create a new future for Australian families and for our society as a whole. The amendments in the bill address myriad problems faced by families going through the traumas of family breakdown—everything from custody negotiation and enforcement of court orders through to the establishment of improved counselling and dispute resolution services.

It is an enormous task to try to smooth out the peaks and troughs in our landscape of family law, but I think almost everyone who has experienced the trauma of a family breakdown would agree that these reforms are long overdue. I have met hundreds of men and women whose access to their children has been restricted, who have lived with domestic violence, who struggle with difficult financial commitments and who live with angst, hurt and personal vindictiveness that all too often come from relationship breakdown. I have seen many non-custodial parents becoming extraordinarily distressed from being deprived of contact with their children. In addition, I have seen the victims of domestic violence placed in unbelievably difficult situations because of the limitations of existing laws.

There has to be a circuit breaker which will see these non-custodial parents being able to enjoy their children and will ensure that the custodian of children feels free from intimidation and violence. The manipulation of either of these two positions—and we see a lot of that in our electorate offices, such as not sending the kids to court ordered or agreed contact times or falsely contriving domestic violence orders—should receive the full force of the law. Our family law system needs to approach individual cases on an impartial basis, with the presumption of shared responsibility and shared rights of parents and with the welfare of children at the forefront of every consideration.

I commend the work of the House of Representatives Family and Community Affairs Committee in compiling its report Every picture tells a story, which has provided a strong platform for the new raft of legislation. The committee’s inquiry into child custody arrangements in the event of family separation took 1,716 submissions from hundreds of different groups ranging from lone fathers associations to academic and legal centres, private citizens, politicians and domestic violence agencies. Members of the committee were exposed to and considered many points of view before the final report was compiled and I commend the committee and in particular its chair, Kay Hull, the member for Riverina, for the excellent work done. Just deviating for a moment from the general tone of this speech, I would also compliment Barry Wakelin, the member for Grey, Minister Brough and the former member for Richmond, Larry Anthony, who headed up internal coalition committees that, in turn, set the preliminary foundation for the Hull committee. Without the hard work of all four of these committees we would not be debating the merits of the amendments here today.

I consider many of the report’s recommendations to be straight-out commonsense and I am sure that they will make the quality of life of many families affected by breakdown appreciably better. Nurturing better relationships between separated parents is the crux of achieving better outcomes for all concerned, particularly for children, when it comes to family breakdown. The bill will help create a non-confrontational environment for parents. It will encourage them to come to access and financial arrangements without having to resort to the court system.

Under these reforms people will first have to attend family dispute resolution and make a genuine effort to resolve their problems before starting the parental order process. That is why the government is rolling out 65 family relationship centres around the nation as part of these reforms. One of these centres will be based in Bundaberg, in my electorate, much to the satisfaction of local families and community support groups. The centre will be the front door to the new family law system and will support families at all stages of their relationships by strengthening their family relationships, preventing separation wherever possible and enabling parents to resolve conflict in separation. All these things are in the interests of their children.

It is a sad fact that more than one million Australian children have a parent living elsewhere and almost 300,000 of these children have no contact with their fathers. At the last census 12 per cent of all families in my electorate were single parent families. If you like, in hard figures the figure for Hinkler was 9,395 single parents. That is an awful lot of people having to cope with tricky custody arrangements, child support payments, other financial arrangements and the flow-on effect on other relationships. It is also an awful lot of children to have limited contact with the non-custodial parent.

An Australian Bureau of Statistics report of 2003 showed that 26 per cent of children in broken households saw their non-custodial parent less than once a year or not at all—26 per cent. The same report showed that 49 per cent of children from broken homes never had an overnight stay with a non-custodial parent. That is a shame. That is nearly half—very bad.

The Australian Institute of Family Studies report Parent-child contact and post-separation parenting arrangements of 2004 backed up those figures with its own startling results. The indicators for custodial mothers whose children have little or no contact with their fathers were quite alarming: 53 per cent of these mothers were unemployed, 50 per cent had no educational qualifications, almost 61 per cent did not own their own homes, 54 per cent had personal incomes of less than $15,000 and more than 70 per cent received no child support. What sort of environment is that for a child to grow up in?

The same study showed a very different result for mothers who had shared care arrangements with the father of their children—and that is not to say that they got on well but that they had got the relationship down to a sensible basis. When you look at the figures there, almost 47 per cent of those women had full-time employment, 67 per cent owned their own home, 35 per cent had a personal income upwards of $35,000 and more than 50 per cent received child support payments.

Perhaps an argument could be made that people who have had few advantages in life, those who are both figuratively and literally holding the baby, are more at risk. But, alternatively, these figures could support the case that separated parents who share custody of their children ultimately enjoy a more stable and fulfilling lifestyle. I think that is what we should use as a starting point. Undoubtedly, the best possible outcome for children in many instances is shared parenting custody arrangements. I am a strong believer that magistrates hearing such cases should enter the hearings with the presupposition that parents have equal shared responsibility and have equal time with the child or children to the extent that that is physically possible.

Of course, the facts of modern-day life mean that shared parenting can only work in a limited number of cases where parents live in reasonably close proximity. It is simply unrealistic to expect children to travel from one parent to the other over long distances time and time again. That creates its own level of dysfunction. In that instance, courts must consider an arrangement for children to spend substantially more time with both parents that will translate into not just weekends and holidays but also doing day-to-day things with them that other kids expect and enjoy.

I also applaud the direction that courts must also consider whether parents fail to fulfil their major responsibilities, like failing to pay child support or not turning up for prearranged pick-ups. When these reforms were first announced, I was quite surprised to receive feedback from one women’s domestic violence group concerning these reforms, saying that these reforms could lead to greater violence being inflicted on women and children. I do not accept that. One point they made particularly angered me. It was this group’s assertion that women, in the main—they did not say exclusively—claiming to have experienced domestic violence should not have to produce evidence of these claims. This is quite an outrageous expectation and one that is punitive with regard to fathers. It is only right and proper that, if an individual wants to make a serious allegation about a former partner, they should front up with the evidence and not just expect that a magistrate will take their word on something which will have lifelong ramifications for the members of that family.

I see a lot of this. In fact, there is one particular lawyer—I had better not name the town; let us say that it is in my general vicinity—whose modus operandi is this: ‘Take off and get into a house somewhere; it will take him three months to find you and, when he gets there, no matter how calm or good he is, slap a domestic violence order on him.’ One of the ex-wives said, ‘Why would you want to do that?’ This lawyer said, ‘It will be better when we get it into the Family Court later.’ That sort of thing is going on. I am not saying that every person does it, but there are even lawyers producing it. I think the new arrangements that are part of this bill which take some of the adversarial nature out of the issues will lead to a much better lifestyle for people.

I further believe that it is only right that individuals who present false evidence to courts should be suitably punished as they would be punished in any other court for a similar misdemeanour. Of course, where there is real violence and threatening behaviour, the court should be equally tough. Magistrates should take it into account in their final decision on custody and access arrangements. So I support both sides of that agenda.

In finishing, I would like to make one other point. I made this point to the committee in my evidence to them. I am sorry that it is not part of the bill. I suppose it is not quite within the strict portfolio area. I think that, where all of these arrangements for counselling are made and where pre-parenting arrangement meetings are being held and so on and where these break down—in other words, for these intractable cases that end up in courts—we should have a very strict rule. Where the parents are of equal or near equal means, both parents should receive legal aid or neither parent should. Where they are not of equal means—where you have a very rich ex-husband and a very poor ex-wife or vice versa—of course legal aid should be given to the one who needs assistance.

I have seen some outrageously unfair decisions in the way of legal aid. The opposition was talking earlier about the Family Court in Parramatta. I remember one gentleman from my electorate used to hitchhike from Gin Gin, west of Bundaberg, to the Parramatta Family Court. He used to live in a dosshouse, because he could not afford any decent accommodation, and then front up to the court, where the wife had a barrister and, because of the contentious nature of the action, the children had a barrister. Both had solicitors. So he goes in there to represent himself and face the Family Court after hitchhiking several thousand kilometres. That is not equality before the law.

My proposition is that we should put legal aid into two buckets. Family Court legal aid should be on that basis. Where people are of like or similar means, both should receive legal aid or neither should so that they both appear before the court on equal terms.

The family law system will always be a difficult system. Amendments contained in this bill will go a fair way to improving the situation. I hope it creates a climate which focuses on conciliation and negotiation, rather than on conflict, and that the welfare of children is paramount in all its considerations. For that reason, in again complimenting Kay Hull and her committee, I give strong support to this bill and commend it to the chamber.

Jill Hall (Shortland, Australian Labor Party) Share this | Link to this | Hansard source

There is no issue that is more disturbing for a member of parliament than to have parents and grandparents coming to your office distraught about issues surrounding a child, distraught for themselves and distraught about the system. I, like many members of this chamber, have dealt with both parties—the custodial parent and the non-custodial parent. From time to time, I really become overwhelmed by the feeling that somewhere amongst this mess we have lost sight of what it is all about. It is all about the children. They are vibrant young beings who have a future in front of them. The role of parents is to help them to achieve their potential.

So often I find that the dispute that led to the breakdown of the marriage, the angst, the anger, has manifest itself in a fight over the children. The children become the pawns. They become another aspect of the hatred that the parents feel for each other. They are another way that the parents can manipulate events against each other. I find that very concerning. Family law and anything that deals with the future of children should be purely and simply about what is best for those children. I think that that is so often lost when we are talking about family law. It is about the children, and we must never lose sight of that.

The Family Law Amendment (Shared Parental Responsibility) Bill 2005 is a major reform of the Family Law Act. I appreciate that the Standing Committee on Family and Community Affairs considered this issue. I know that members on this side of the House and on the other side of the House became quite emotionally involved in the inquiry. It is the kind of inquiry that it is very difficult to separate yourself from because, as I stated at the beginning of my contribution, this is about real, live people. The committee brought down an excellent report, entitled Every picture tells a story. I would like to acknowledge the fine work that they have done.

This legislation includes the following reforms to the Family Law Act: it introduces a rebuttable presumption of shared parental responsibility; it requires the court to consider equal, significant and substantial shared time with both parents; and it introduces compulsory mediation before litigation, with limited exceptions.

I note that the previous speaker highlighted a particular court case, and I also do not think there is equity in the system. You could be in a courtroom where there was a solicitor or a barrister for the custodial parent and for the non-custodial parent, and, if there were three or four children, separate legal representation for each of them, and yet the best and most just result for those children would not necessarily be delivered. It just becomes an extension of the battle that is taking place. There is a problem in the system.

This legislation also introduces a less adversarial court process, which will be good. It promotes parenting plans as agreed between parents without lawyers—and I know those parenting plans can work. It provides, among other changes, a legislative basis for a major increase in family relationship services through the creation of 65 family relationship centres.

I turn now to a meeting I had in my office on Friday, 20 January. It was a roundtable meeting and included Susan Sanders-Cook, Val McEwan, Stephen Bowskill, Howard Learmouth, Nellie Fennell, Sonia Anderson, Barbara Tebo, Terry Tebo, Michael Lewis and Michael Riddell, and I thank them very much for the time they put aside that day to spend with me and for sharing with me their ideas.

Out of that meeting, Sonia Anderson, who is a solicitor, put together a submission, A grassroots response to the family law reform, highlighting the group’s ideas for making the system better and fairer. The submission starts off by emphasising the need for a bipartisan approach towards family relationship issues. I think that is paramount if anything is to change. The reforms, the group emphasised, should attempt to answer two questions:

1.

What is in the best interests of the child/children?

2.

How does the Court determine what is in the best interests of the child/children?

They continue:

The reforms are aimed at providing a new recipe/formula for the Court and Family Law Dispute Resolution Services to use in an attempt to answer these questions.

These are the reforms that the group is suggesting.

They go on to say that their submission has a very narrow focus. It focuses ‘solely on the development of an alternative approach for those people who wish to explore the possibility of answering these questions themselves’. Their concern is that the family relationship centres are too directive. They believe that the family relationship centres, as detailed in the government’s reform package, should be encouraging individuals to develop solutions for themselves. The current proposal for these centres, they argue, ‘will do little to empower disputing parties towards developing their own solutions’.

It was argued very strongly to me that the best solutions are solutions that the parties can sit down and agree to. To go back to those parenting plans: if the parents can sit down together and develop a plan that is in the interests of the child or children, you will get the best outcome.

It is interesting to note that the people who attended this particular meeting included representatives from fathers groups, as well as people who practise in the area of social and psychological wellbeing. We had people from the field of education—a professor, a teacher and a lecturer in teaching at Newcastle University. And, I must not forget, we also had a grandmother involved. So these people came from very diverse backgrounds.

What they were arguing very strongly was that the government’s family relationship centres in their current form are an advisory dispute resolution service. They feel that the best results would be achieved by a facilitative dispute resolution system. It is argued that if the government were truly looking for cultural change then they would consider the differences between these two different methods of dispute resolution. They would soon find that by adopting a facilitative approach to dispute resolution it would empower both parties involved in the resolution of the problems rather than abrogate or hand over responsibility of those parties to a professional to solve the problem for them.

It is further argued that, in the shift from advisory dispute resolution towards facilitative dispute resolution, real cultural change would be achieved. The model that is being proposed and included in this legislation does little other than extend the current system—non-adversarial advisory dispute resolution as distinct from adversarial dispute resolution. The reason for this is purely and simply because the government has not been able to develop a concept of facilitative dispute resolution.

I ask the House and the members to remember that these people who attended my office on 20 January and who put together this submission are all people who have been involved in the family law system for a very long time. Many of them would see themselves as victims of the system. Many of them have been fighting to have changes made for a very long period of time. I think that what they have suggested is a very fair and reasonable approach. They also emphasise the need for education programs that will enable parents, grandparents and significant others to understand their own role in the family dynamics. As members would know, recent research has shown just how important extended family and significant others are in the development of children.

I hope the House and the government look at and think about what I have outlined in my contribution in relation to the difference between facilitative dispute resolution and advisory dispute resolution. The difference is between taking control of your life and handing it over to professionals, allowing them to take responsibility for determining where you go in the future and where your family goes.

I will also make a contribution about the government’s family relationship centres tender process. I do not believe it has been open and transparent and I think there is a lack of accountability. One of the most important things is for people to understand the process that has been involved in determining where those family relationship centres will be located. Each and every one of us has families and constituents that are affected by family law. So I think it is not the best approach, in determining where those centres should be located, to appoint a group of marginal-seat government backbenchers to make that decision. I believe that the process should be a lot more transparent. The whole process, its underlying effectiveness and its acceptance within the community, will be affected by that.

It is very important too that those services that are provided through the family relationship centres should be of a high quality. I again urge the government to look at adopting the facilitative approach as opposed to the advisory approach. I will be so bold as to suggest that they may like to pilot a facilitative approach in one of the family relationship centres. And if they would like to make a commitment to setting up a family relationship centre in the Shortland electorate, I would be more than happy to welcome one into my electorate.

It is very sad that there are so many separations within our community and so many families where children have their parents living in different places, with children being torn between the two parents. The government needs to take some responsibility for that. There are many pressures on family today, and families need and deserve a high level of support. I worry about the new industrial relations legislation that has recently passed the House. I think it is going to place greater strain on families. I do not think that anything that has happened in recent times will help alleviate the pressures that lead to family breakdown. The government needs to be more proactive. Family relationship centres could, on the face of it, appear to be more proactive, but I would argue that they are far too late—their approach needs to be a lot earlier, and it needs to be from a very different perspective.

In conclusion, I support the amendment moved by the shadow Attorney-General and I implore the House, the minister and the government to consider the suggestion that I have made today in my contribution.

Barry Haase (Kalgoorlie, Liberal Party) Share this | Link to this | Hansard source

I rise to speak in support of the Family Law Amendment (Shared Parental Responsibility) Bill 2005, which represents the most significant reforms to the family law system in 30 years. I am proud to be part of a government which is taking such a strong stance on an issue as important as this—that is, the responsibilities that parents have for their children.

In my maiden speech to this House in 1998 I talked about the plight of non-custodial parents. At the time I said:

The Family Court and the controls placed by the Child Support Agency are creating a cohort of second-class citizens. As a result, many people are marginalised. The statistics in my electorate indicate that 3,800 non-custodial parents are affected—

and today that total number of men and women in the Kalgoorlie electorate who are in the clutches of the CSA has grown to 9,000—

but that is not the end of this issue. Many current partners of the non-custodial parents—and the children from the second family for which they are now responsible—are inextricably damned by decisions made by the Family Court. The act that encourages this unfair situation is the Family Law Act of 1975. In the last 23 years, the economic and parenting roles of men and women have irreversibly changed, to the point where this legislation no longer reflects the role models and aspirations of society. The Child Support Agency—supposedly the cheap, easy, flat formula method of child support which was meant to create a process to give satisfactory levels of child support—has created a rigidity that is leading to the destruction of non-custodial parents’ lives.

That was true then and it is sadly true to this day. It is now seven years since I made those comments, and many of the changes effected by this legislation are considered to be well overdue. I am conscious of the disappointment of many people that the introduction of these changes will not be effective immediately.

The government is trying not to force couples to stay together or lecture them or their families with this bill, but to help parents to move away from litigation and towards cooperation. This is not Big Brother in the living room. This is, however, bold reform that is vital to changing the culture of litigation. That is why the Australian government has committed $400 million to this project over the next four years. This bill amends the Family Law Act 1975 to implement a number of the recommendations of the House of Representatives Standing Committee on Family and Community Affairs inquiry into child custody arrangements in the event of family separation and its report, Every picture tells a story. It has been a longstanding policy of this government to encourage people to take responsibility for resolving disputes in a non-adversarial manner.

The key changes in the shared parenting bill are: to introduce the new presumption of equal shared parental responsibility; to require parents to attend family dispute resolution and make a genuine effort to resolve their dispute before taking a parenting matter to court when there is no question of harm; to make it the right of the child to know their parents and be protected from harm; to amend the existing definition of ‘family violence’ to make clear that a fear or apprehension of violence must be reasonable; to strengthen the existing enforcement regime by giving the courts a wider range of powers; to require the court to consider whether a child spending equal time with both parents is reasonably practical and in the best interests of the child; to require the court to take into account parents who fail to fulfil their responsibilities; and to better recognise the interests of the child in spending time with grandparents and other relatives.

The presumption of this bill is that the parents have joint parental responsibility for the child. Joint parental responsibility means that decisions about major long-term issues such as education, health and religion will be made by both parents for the benefit of the child. The amendments in this schedule also clarify what joint parental responsibility means for parents when they are making agreements about parenting arrangements. These include time, communication, maintenance and decision making.

This provision does not mean that there will be a presumption that the child will spend equal time with each parent. The committee rejected the notion of fifty-fifty shared custody. The court must consider whether both parents wish to spend substantial time with the child, whether it is reasonably practical for the child to spend this time with their parents and whether it is in the best interests of the child. Where there is a contravention, the court will be required to consider the subsequent parenting plan when considering whether to vary the parenting order. The court will be given greater powers to impose various sanctions against parents who do not comply with agreements, such as compensation for reasonable expenses and costs.

The introduction of this family dispute resolution requirement will increase the demand for dispute resolution services. The government is rolling out family relationship centres and other services to meet this demand. The new family relationship centres will provide help and advice on relationship issues. I was very pleased to learn that one of these centres will be established in the Pilbara, in my electorate. A national toll-free telephone advice line and a website will operate for those not living near a centre. People who are able to reach agreement without assistance of course will not be required to use the dispute resolution services if they do not need them.

When a party is reluctant to participate effectively in family dispute resolution, the court will not allow a dispute to remain unresolved due to simple and deliberate humbug, and will have the power to order attendance. All children have the right to a meaningful relationship with both parents and to be protected from harm. Providing there is no question of harm, both parents should remain involved in caring for their children after separation. Unfortunately, many fathers in my electorate work ‘fly in, fly out’ from Perth and they need great flexibility after a marriage breakdown if they are to see their children. They are simply not home every second weekend. These amendments recognise that children need to be protected from physical and psychological harm which, unfortunately, is far too common. When a relationship breaks down it is often difficult to prevent emotions getting in the way of what should be the focus: the children. An estimated 200 children go through the Family Law Court every day—an unacceptably high number. No child should ever have to suffer such an experience, and parents should think more about the long-term effects of such exposure.

Fathers, who are usually the ones disenfranchised from their children, suffer from grief, resentment and great frustration. Many fathers are bitter about paying the living costs of their former partners but being prevented from being part of their children’s lives, and many find it too difficult to cope and take their own lives. According to the support group Dads in Distress, 77 fathers separate from their child’s mother every day. On average, at least one of these men suicides every day. The tragic loss of life aside, these suicides cost Australia $7.5 million per day—surely far too high a price to pay. More than one million children living in Australia have one parent living elsewhere. A report by the Australian Institute of Family Studies last year found that more than one-third of children from broken homes spend little or no time with their father, and 26 per cent saw one parent—usually their father—only once a year. That is a huge percentage of the population growing up without the important influence a father has, and also without knowing their paternal relatives.

The irresponsible men who neglect their responsibilities need to be held to account for their actions, but the current system penalises those trying to do the right thing as well. These fathers do not want to take highly paid jobs, as child support is taken as a percentage of their wages, so the economy is suffering. How often do we hear the story that people are leaving a job because they believe that the child support they are paying is being inappropriately spent? There are a number of amendments which provide for a greater role for grandparents and other relatives of a child, and recognise the importance of the relationships the child has with their wider family—in particular their grandparents. There are also provisions for the views of the child to be taken into account without them feeling as though they are actually making the decisions.

This bill is about making situations practical and manageable, and putting the onus back on parents for the wellbeing of their children. Parents do know what is best for their children, but, given that the future leaders of this great nation are the children of today, it is our responsibility to ensure that the emotion of partnership breakdown does not obscure that natural parenting ability. I commend this bill to the House.

Chris Hayes (Werriwa, Australian Labor Party) Share this | Link to this | Hansard source

One of the most difficult issues that will confront many of us or that we will ever have to deal with is family breakdown. I do not think any member of this place would say otherwise. Many members would no doubt deal on a regular basis, through emails or representations from various groups throughout the country, with issues associated with the Family Court and child support agencies. It is clear from my dealings with separated parents that their situation is not their preferred situation. Particularly, it is not the preferred situation for many of the children involved.

The provisions of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 will have a profound impact on many individuals within our community. They will have a profound and often long-lasting effect on those at the heart of the issues involved who, unfortunately, in many instances, will be children. When we consider issues surrounding family law it is too simplistic to say that there are 8,760 hours in a year and that that means that each parent has the right to have the child or children for 4,380 hours a year. Division of parental responsibility is not a mathematical calculation, nor should it be treated as such. It is overly simplistic and far from being in the best interests of the child for separating couples to sit down and divide the time spent caring for children in the same way they might divide the financial and physical assets of their relationship. Children are not a commodity, they are certainly not a consumer good and they should not be treated like toys or the like. Quite frankly, children must be special and must be treated as such in any relationship. Children should not be the leftover consideration when it comes to separation.

To treat a child in that manner flies in the face of responsible parenting and flies in the face of claims by either parent that they have the best interests of their child or children at heart. In making these comments, I do not shy away from the need for children to have both of their parents available to them despite the parents’ separation. Having both parents available to a child when the child needs it is a better reflection of shared parental responsibility. I support Labor’s continued opposition to the presumption of equal shared parenting time but support and will always support action that allows parents to share parental responsibility in a fair manner—that is, a fair manner that works for them and, most importantly, works for the children involved. It is important to recognise that the bill we have before us today will require a court to apply the presumption that it is in the best interests of the child for parents to have equal parenting responsibility. While I note that parental responsibility is a separate issue from residence or contact, and there is not the focus on time, I am concerned at the implications of changing the starting point for consideration of parental responsibility to the concept of equal shared responsibility.

The presumption will not apply if there are reasonable grounds to believe that one parent has engaged in child abuse or family violence. Under this presumption it is up to one parent to argue that parental responsibility should not be shared. I have to wonder: how is that in the best interests of the child? Using this presumption as a starting point increases the risk of litigation in the future and increases the potential for any ongoing tensions between separated parents to manifest themselves in the important decisions related to the upbringing of their child. I am also concerned about the content of section 60CC of this bill, which deals with what has become known as the ‘best interests of the child test’. The bill will introduce a hierarchy of factors, primarily additional considerations that seem to do little more than complicate matters further. I note that the hierarchy of consideration was also opposed by the courts and the Law Council. I also note that the government has included an additional section—that is, section 60CC(4)—which quite frankly has come directly from Labor and acts to remind parents that parenting is in effect a two-way street. Under this section, it is implicitly recognised that there are parental responsibilities for those who demand parental rights.

Possibly the biggest change under this bill is the introduction of compulsory family dispute resolution for separating parents before they are able to commence court litigation. The insertion of this requirement makes me wonder what the motivation of the government is when it comes to issues surrounding separations. I have to wonder whether this is the first step in a move to try and roll back divorce laws in Australia—to try and have the bureaucracy in the bedroom again, as it was once, before we introduced the no-fault divorce into our country.

Earlier this year, I read a newspaper report about how the Young Liberals wanted to reintroduce the concept of fault into divorce. I even recall, for instance, the member for Bass supporting the concept. The Weekend Australian on 21 January reported the member for Bass saying:

There are too many divorces in Australia and there’s a role for government to do more ...

I tend to agree that there are too many divorces in Australia, but I stop short of believing that the government has a role to play in trying to stop divorce by making it more difficult for parties to a relationship to separate. Harking back to some romantic notions of times past is not an adequate way of dealing with a contemporary issue of relationships. Late last year, it was reported that the number of divorces was down. Marriage is a significant commitment between two people, and it ought not to be entered into lightly, but, by the same token, divorce is something that people do not enter into lightly, and I wonder about the merits of introducing a law that requires couples to go through minimum periods of dispute resolution before they can proceed to the courts.

The obligations that are placed on parents under this plan are particularly bureaucratic. The most interesting requirement of this process is that the family relationship dispute practitioner is to determine whether or not, in the opinion of the practitioner, both parties have made a genuine effort to resolve a dispute. Of course, this is fine if the practitioner decides that you have made a genuine effort to resolve a dispute. That being the case, your application for divorce will then proceed to the courts. But there has been little or no effort to define what a ‘genuine’ attempt would comprise.

At the moment, we do not even know the level of qualification of the practitioners making this assessment, their accreditation or, quite frankly, anything associated with that, other than that they will be required to make a decision about whether you have participated and made a genuine attempt to resolve a dispute.

Once a practitioner has come to the conclusion that you have not made a genuine attempt to resolve a dispute, there does not seem to be any review possible under the proposed act. You simply do not get a second shot at it. Your papers are simply certified by the practitioner to the effect that you failed to make an adequate attempt to resolve the dispute.

I am also concerned about the ability for the government to actually provide these services and about the government’s control over the quality of these services. As I said, we do not know at this stage how the practitioners are to be appointed. We do not know their qualifications or their level of accreditation, other than that they are referred to in the proposed legislation.

As usual with this government, it is a case of introducing the laws now, getting them through parliament, using regulation to actually make them work and then ironing out any other details in due course. I might remind the chamber that we are still waiting for the detail of the government’s industrial relations laws to be announced. One wonders how long we are going to have to wait for the details of the operation of the compulsory dispute process that is outlined in this bill.

Members opposite can rest assured that I will be waiting to see the outcome of this process, especially when it comes to the family relationship centre which is going to be located in Campbelltown. I support Labor’s amendment, which would bring some certainty to this process. I support Labor’s amendment, which would guarantee free consulting so that, given the compulsory nature of the family dispute resolution process, it actually does meet the government’s promise that it will be made available and it will be free. I also strongly support the part of Labor’s amendment demanding that there be, before this process becomes compulsory, accreditation and quality standards for family relationship centres and the practitioners that work within them.

I also support the effort to change the certificate reflecting attendance or non-attendance, allowing the court to make the final judgment and draw any inference from the attendance record. As it is at the moment, all that needs to be certified is whether you have made an effort to resolve the dispute, not whether a party has decided to attend or not attend. Those are issues that, quite frankly, ought to be left to the court. There should not be a punitive arrangement around whether you attended the counselling session or not. It should be there to help people resolve issues. In terms of making any implication or extracting an implication from non-attendance, that should rightly be left with the judges at the time of entering into a judicial process if the relationship breaks down to that extent. I believe that this should continue to be the case. There should be the possibility of frank and full rulings made by the court which should not be compromised by subjective judgments by one practitioner whose qualifications and accreditation levels, as I said, at this stage are simply unknown.

The bill also proposes a change in the nature of parenting plans. Despite the fact that parenting plans are currently unenforceable, this bill moves to increase the role that they can play. The proposition that the court considers the most recent parenting plan when making a parenting order and that, by default, parenting orders can be varied by a subsequent parenting plan automatically raises their importance, despite the fact that there is no process for scrutiny or registration of parenting plans and no requirement to obtain legal advice. These plans will act to affect determined legal outcomes. Therefore, I would submit that it is important that there be a requirement or at least an availability for people to take external advice in relation to these issues. While the government has at least conceded that the plans should be signed and dated, it continues to refuse the recommendation that there should be a seven-day cooling-off period. The fact that the government refuses to incorporate this cooling-off period means that the risk remains that the plans could be developed and signed in private and under duress with no external advice.

As I noted earlier, a parenting plan can vary the terms of a parenting order and, given this new and increasing status, there is a real risk that without any quality control a forced parenting plan could override a decision of the court, potentially acting against the best interest of the child. It is for this reason that I support the move to include a seven-day cooling-off period to the plan being given full status.

I am pleased that a bill that sets out some necessary changes to our approach to family breakdown is before this House. Marriage and family breakdown are never easy issues to deal with. No matter what the content of any legislation being proposed, there will always be at least one group who feel they have not been adequately treated in the process. By supporting Labor’s reasonable amendment, I think we will find that most groups will at least consider that the child will be adequately covered under this process.

It is not a fair or reasonable proposition for the government to regulate the way in which children are raised, nor is it fair or reasonable to presume that a one-size-fits-all approach to dealing with the issues surrounding family breakdown can be developed. Families, like the individuals who comprise them, are reasonably unique in character. In modern society, families have it tough enough in dealing with day-to-day issues without needing to be told how they should operate. There is no doubt there is a need for changes to improve law surrounding areas of people’s lives, and I consider this bill in the main to be a fair approach to changing the law. It has been developed after considerable consultation with many interested parties.

To that extent, I support this bill because it encourages parents to take more responsibility for their children. I support the bill because it proposes mechanisms that provide the capacity to take these issues out of the adversarial environment of the courts and away from the legal system. I do not think that these mechanisms are completely perfect in their current form and that is why I support Labor’s amendment, but I welcome the fact that promoting non court based dispute resolution may better afford the opportunity for parents in dispute to reflect on the fact that the use of the court may be making their children the forgotten victims in these sad exercises.

Children should and always must be the priority when it comes to a family breakdown. There can be no excuse for anyone who is involved not to have the child at the front of their minds whenever they are considering this action. I believe the amendment Labor has proposed acts to strengthen what is in principle a sound set of improvements to the law. I encourage all members to support this amendment to improve this bill, to finetune it, to make sure cooperation is the central tenet of family law and to stop people feeling they are wasting money in courts and to start them investing their money in their children’s future.

Dennis Jensen (Tangney, Liberal Party) Share this | Link to this | Hansard source

The issue of family breakdown and the involvement of children in those family breakdowns is a very sad affair. It is an issue I brought up in my first speech in October 2004. I recall relating a case where a custodial parent in Sydney had not allowed the child on an aeroplane to meet the non-custodial parent in Perth, despite agreement that that was to take place. In fact, when the non-custodial parent called the custodial parent, the reaction was: ‘Well, I did not want that to happen.’ Clearly, this is totally inadequate.

I have heard so many stories in my electorate of Tangney that are really tragic. I have had numerous non-custodial parents come to me. They speak about their lack of involvement in their child’s upbringing, the fact that they have no part in the decision making about what school they go to, when they see their children and the day-to-day activities of their children. Not only is this not in the non-custodial parent’s best interests but, more importantly, it is not in the child’s best interests. The child has every right to have full access to both parents—apart from, obviously, cases where there is documented violence or suspected violence.

I recall that in his maiden speech the member for Wakefield correctly asserted that it is all very well having a safety net at the bottom of a cliff in order to deal with the results of family breakdown but we need a fence at the top of the cliff to actually stop the family breakdown in the first place. I fully agree with his sentiments. I think that these are critical issues that need to be faced in our society. However, the reality is that there are always going to be family breakdowns. As much as we may not like it, many of these will not be amiable breakdowns. There will be a lot of resentment and, as such, often the children will be used as weapons. In my view, this legislation, the Family Law Amendment (Shared Parental Responsibility) Bill 2005 goes a very long way to making the situation fair, to try to take some of the heat out of these breakdowns as far as the children are concerned.

I will turn to the key changes in the shared parenting bill. I like to emphasise the name of the bill—shared parenting—because I think that shared parenting and involvement in children’s lives is so important. The first key change is to introduce a new presumption of equal shared parental responsibility. This is an absolutely critical facet. Regardless of what sort of custodial arrangements have been arrived at, the fact is that both parents are entitled to have a say and a role in making decisions that affect the long-term interests of their children, such as the child going to school, and health care and so on.

The second component of this bill requires that the court consider whether a child spending equal time with both parents is reasonably practicable. This is perfectly reasonable. Obviously, in some circumstances this is not practicable. In some circumstances the parents live geographically far apart. In those cases you still want to have maximum shared parenting responsibility, but it is not practical to have completely equal time spent with the child. However, if, as I said, the court deems that it is not appropriate to have equal shared parenting time, the court must consider that the time that then is allocated to the non-custodial parent is substantial and significant. In other words, it should not be the case that the custodial parent flicks the child to the non-custodial parent for the odd weekend and maybe school holidays. There has to be day-to-day routine wrapped up in this. Let us face it: holiday times are not the way that you live normally day to day. As such, a complete relationship between the child and the parents does not develop in those circumstances. You need to have that day-to-day routine.

The third point is that the legislation makes it the right of the child—and this is so critical—to know their parents and to be protected from harm. These clearly are primary factors in deciding the best interests of the child. The child has this right to know. The parents may bicker and may hate each other after the break-up, but in most cases it is not that one parent is a terrible person and the other is a good person. It is just that the parents have not been able to make things work and therefore they have conflict between them. But the child should be entitled to have a good relationship with both parents.

This bill will also require parents to attend family dispute resolution and make a genuine effort to resolve their dispute before taking the matter to court. All too often, you have the feeling in these break-ups that there is a reasonable possibility of getting some reasonable compromise but, as soon as it goes to court and, particularly, the lawyers get hold of it, it becomes adversarial—and this is not what we want in this regard. It is far better to try to have a cooperative system where the access to the child and, more importantly, the child’s access to the parent is decided amicably. Obviously, this requirement does not apply where there is a history of violence or abuse.

This bill will also strengthen the existing enforcement regimes by giving courts a wider range of powers in terms of custodial parents not allowing non-custodial parents access. All too often we hear about situations where custodial parents do not allow non-custodial parents access to the children and vice versa and, essentially, nothing is done about it. That is just time that has been lost. That is precious time that the child could be spending with a non-custodial parent that is gone, and it is not made up. This bill will allow the courts to make orders to insist on make-up time if the access provisions are not adhered to. This will adequately deal with people who breach parenting orders.

This bill will also require that the court take into account parents who fail to fulfil their major responsibilities. For example, it is not acceptable that a parent who should be paying child support is not paying child support and there are no punitive measures in place in terms of access or other provisions. Things like non-custodial parents not paying child support or not turning up to pick the child up when the custody allows them to do so are unacceptable, so the bill will allow the court to then change the provisions.

The bill will also amend the definition of family violence to make it clear that an apprehension of violence must be reasonable. Too often we have heard—and, I am sure, everyone who works in an electoral office has heard—of cases where this fear of violence is thrown in as a joker that trumps everything else in a custodial dispute. This bill also provides for a less adversarial approach in all child related proceedings. This is critical. As I said, too often these things become adversarial, where normally there would be some hope of having an amicable agreement.

The bill will also better recognise the interests of the child in spending time with grandparents and other relatives. Once again, I am sure that everyone here has heard of cases where grandparents come into electoral offices and say: ‘It’s terrible. I never get to see my grandchildren. My son or daughter—the non-custodial parent—occasionally gets custody, but it’s so rare that we never get to see them.’ This is not really acceptable either, because families are more than just nuclear families—they are more than just a mother and children or a father and children. There is a broader context to this that we need to consider. Given all of this, I really do think that this bill goes a very long way to addressing the problems that all of us have seen in terms of disputes where the children are significantly disadvantaged. As such, I commend this bill to the House.

Steve Gibbons (Bendigo, Australian Labor Party) Share this | Link to this | Hansard source

I welcome the opportunity to participate in this debate on the Family Law Amendment (Shared Parental Responsibility) Bill 2005. Labor have stated that we support the concept of shared parenting because we believe the needs of children are best served by both parents staying in contact with their children after separation. There have been significant changes in the numbers of separated fathers who take an active part in caring for their children and it is appropriate that the law recognises that patterns of parenting are changing whilst still acknowledging that mothers are still providing the majority of care for children in the community.

This bill incorporates measures that attempt to simplify court processes involving children and to make them less adversarial by encouraging parents to try to resolve differences where possible without the need for the intervention of courts. As my colleague the member for Gellibrand has said, 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 relationships services. It includes $200 million towards increased funding of services under the existing Family Relationships Services Program. Labor enthusiastically welcomed this new money when it was announced. Indeed, we have been arguing for a number of years that these services have been sorely neglected by the Howard government.

Labor have introduced an amendment proposing a series of measures we believe will strengthen this bill. They are:

(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”.

As I said before, we 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, if you like, and an entry point for advice, referral, counselling and mediation services. However, it is disappointing that Bendigo, one of the largest regional centres in Victoria, has not gained one of the family relationship centres. Last year Attorney-General Philip Ruddock announced the location of the 65 FRCs, and again Bendigo was overlooked while Ballarat and Shepparton gained the service.

While some of the areas that gained a centre were in Labor electorates, the majority of centres went to coalition electorates with far less demand for the services than Bendigo provides. The Prime Minister’s electorate of Bennelong, for example, and health minister Abbott’s electorate of Warringah are to receive the service, both with demand levels less than half Bendigo’s potential demand. The services in both Bennelong and Warringah will be located approximately 15 minutes apart, while Bendigo families using the service will have to travel to Ballarat or Shepparton, up to an hour and a half or an hour and three quarters, to access the service.

It is worth noting some of the statistics about the likely clientele for this particular service. For example, in Bendigo one-parent families total 4,215; in Bennelong there are just 2,364; and in Warringah there are 2,176. The figures for total number of families in Bendigo are 16,147; in Bennelong, 15,978; and in Warringah, 14,154. This is where it gets interesting. The figures for family tax benefit category A recipients are: Bendigo, 13,682; Bennelong, 7,654; and Warringah, 5,427. For family tax benefit part B recipients: Bendigo, 10,223; Bennelong, 6,056; and Warringah, 4,497. For parenting payment single recipients: Bendigo, 3,744; Bennelong, just 1,118; and Warringah, 1,073. For single parent payment partnered recipients: Bendigo, 1,408; Bennelong, 720; and Warringah, 248. For child support eligible children recipients: Bendigo, 6,957; Bennelong, just 2,555; and Warringah, 3,914. For child support payees: Bendigo has 4,752 recipients; Bennelong has 1,494; and Warringah has 2,184. For child support payers: Bendigo, 4,107 recipients; Bennelong, 1,643; and Warringah, 2,519.

I certainly do not begrudge those electorates gaining these centres, because obviously there is a need, but clearly Bendigo has a far greater need. Given that the Commonwealth is considering making it compulsory to attend some form of mediation before staring court proceedings to resolve a parenting dispute, it is vital that the Howard government reconsider its decision not to provide this service in Bendigo. A family relationship centre located at Bendigo Salvation Army, for example, would complement a range of related services already being provided very successfully by the Salvos. The minister and the department chose the locations and did not invite submissions or expressions of interest from any areas, including those that most need the service. The minister also relied on information from a Liberal-National coalition backbench committee and it is interesting that seven out of eight members of that committee gained a service in their electorates. I will continue to push hard for this important service to be located in Bendigo. As I said before, the Salvation Army Bendigo’s Fairground Children’s Contact Service has also expressed concern at the Attorney-General’s decision not to grant Bendigo a family relationship centre.

The discussion paper A new approach to the family law system indicated that a key relationship exists between children’s contact services and family relationship centres. Of the 44 children’s contact services sites listed on the FaCS website, only three will not have a family relationship centre in close proximity. All three of them are in rural and remote Australia. They are Bendigo, Alice Springs and Orange. Bendigo is the only Victorian children’s contact service that will not be co-located with a family relationship centre.

The Loddon region population of 200,000 is crying out for a centre. The nearest family relationship centre will be at Ballarat, Shepparton or Melbourne, in the city. There is extremely inadequate public transport from Bendigo to either Ballarat or Shepparton, and a private car trip is approximately 1½ hours one way. These are extreme costs to families, of time and money, particularly because families will be often separated, thereby doubling the overall costs as each parent travels separately. It will be easier for Bendigo families to access the Melbourne city family relationship centre.

The Family relationship centres information paper says that FRCs will have an outreach component and brokering moneys for families to access FRC services in other agencies. If Bendigo people are not to travel, at significant cost, to an FRC, then these models of how an FRC can come to them beg the question as to why an FRC did not get nominated for Bendigo in the first place. It is hard to expect that either Ballarat or Shepparton will spend large amounts of their budgets providing what will need to be full-time outreach services to Bendigo or brokerage of Bendigo services.

Bendigo has no funding under the family relationship services program for men and family relationship services and family violence services. Ballarat has these services already. We are not receiving an FRC. What are the implications for attracting future family relationship services to Bendigo? It would seem unlikely, for example, that one of the new 15 contact orders pilot ‘parents forever’ program initiatives would come to Bendigo without an associated family relationship centre.

Fairground is concerned about the implications for Bendigo separating families. With FRC access denied to them, it is not hard to predict that many will opt for self-management without attending an FRC or the Family Court, without any opportunity to resolve the issues. Also, if a father, for example, cannot get the mother of the children to attend an FRC, a court application places him in the same situation as he currently faces.

Fairground was looking forward to receiving families from an FRC in a prepared, well-managed and child-focused manner. The implications are that now it will see a significant number of families being referred in the same way as at present, through an inadequate Family Court pathway. Consequently, Fairground may have to absorb this extra demand, working in the style of a contact orders program without any of the extra funding. Already it has been expected to absorb the extra costs of penalty rate increases for weekend staff under the SACS Victoria 2000 award, with no prospect of additional funding. Ultimately children may be the big losers from these decisions, as more of them remain stuck in the battleground of conflictual separations. I urge the minister and the government to reconsider placing an FRC in Bendigo, where there is a clear demand for the service.

Joanna Gash (Gilmore, Liberal Party) Share this | Link to this | Hansard source

Member for Bendigo, I am amazed at your comments. Never once do you say anything is good. These changes have come about after 10 years. What is the Labor Party’s proposal on the Family Law Amendment (Shared Parental Responsibility) Bill 2005? Come on; let us be fair about this. You know that these changes are long overdue.

Steve Gibbons (Bendigo, Australian Labor Party) Share this | Link to this | Hansard source

I said we support them.

Joanna Gash (Gilmore, Liberal Party) Share this | Link to this | Hansard source

Yes, but you always have to rubbish something. Divorce has been cited as one of the more significant life events that contribute to stress related injury. It is up there with the death of a loved one and other similar personal life tragedies. Its impact is not restricted to the two parties concerned. The parents at least may have the capacity to move on in most cases and to adjust. Their children, on the other hand, are not as fortunate. Nor are the grandparents, who suffer just as much and who are the forgotten ones in cases of divorced couples. Children in their formative years bear the scars for a lifetime. Without having the ability to adjust in a mature and responsible way, they often pass that legacy on to their own children. It is unrealistic to expect that the fallout from such an event can be contained and that all concerned can expect to behave with civility and be accepting of the consequences. Life is not like that, and the least able to weather the storm are the children.

Since being elected to represent the electorate of Gilmore, I have seen first-hand some of the worst of these consequences—the anger, the vindictiveness, the spite and the hatred that surrounds many of these cases. When the divorce comes through, that is often not the end but rather the beginning of a whole new dimension, particularly for the children. One parent virtually disappears out of their home, and the relationship they had with both parents is turned on its head. It is very much like a death, and children become swallowed up in the grieving process. Sadly, every now and then, as has been the case in Gilmore, one parent kills the family’s children and takes their own life to punish the surviving partner. Such are the extremes of emotion that cannot be confronted rationally as rationality flies out the window.

We as a government cannot prevent divorces. Neither can we protect children entirely from the consequences. But we can try to minimise the harm that is sure to flow from divorce. I am not an advocate of preserving an unhappy marriage, for that too brings with it numerous negative consequences. I would not want to see anyone chained to a relationship that causes only pain and grief. Being a divorcee myself, I experienced the grief and the feeling of pain for my children as they processed their reactions. They are still, after 30 years, coming to terms with it, as are their children—my grandchildren. So, yes, I certainly appreciate the situation.

A totally happily marriage for all time might be an illusory creature, and couples will experience friction in their relationship from time to time. Since the advent of the no fault family law legislation in 1975, it has been argued that divorce has been made so much easier to obtain and that the legislation gives people an easy option rather than making them work to repair the rift in their relationship. In fact, there have been some schools of thought proposing that we should be looking at reinstating fault based divorce proceedings. I am in two minds about that, but I suppose there is a cogent case for both approaches. I am more concerned with the victims, who would have no choice in the matter regardless of the approach, were parents to resign themselves to their differences and try to make it work.

This bill acknowledges that path and attempts to deal with it. Children have a remarkable resilience to such events and can, within the right environment, adjust rationally and reasonably over time. And that is the key: it being the right environment. Key research findings indicate that it is not so much the divorce that causes the problems so much as the almost inevitable conflict that comes with it. It is perhaps useful to reiterate a statement from the Department of Family and Community Services website addressed to this proposition. It says:

• There is a need for mechanisms for children to have a voice in relation to their experience of parental conflict, separation and divorce.
• High levels of marital conflict are linked to a whole range of adjustment problems in children, for example, depression and acting out behaviours ...
• Marital conflict is a better predictor of adjustment for children than divorce itself.
• The quality of the parenting is diminished in a high conflict relationship.
• Various aspects of a divorce increase adjustment problems – financial insecurity, lack of parenting, decline in standards of living.
• When fathers engage in active parenting there is better adjustment for children during divorce and separation (subject to issues of violence and abuse).
• Intervention at an earlier stage in the separation process is very beneficial – for example, divorce/parent education programs for helping parents to focus on children’s needs.
• Children can show remarkable resilience in adapting to changed households and new residential arrangements ...
• Children’s groups could be a useful means of children getting peer support.

So, the emphasis is on prevention, and the thread of this bill reflects those findings.

When the bill was promulgated, the Shared Parenting Council of Australia said:

Through its reform agenda and legislation introduced today, we have witnessed this Government do more to support the rights of children to the love and nurture of their parents than any other Australian Government in any other period in living memory. The legislation clearly protects children from violence and abuse with a range of new measures.

That is quite an endorsement from a group that knows what it is all about. Shared responsibility is the crux of responsible parenting. When you have brought a child into this world, they are the equal responsibility of the couple that created them. Divorce is not a vehicle for relieving one or both parents from that obligation. Unfortunately, not all parents are responsible, so it behoves the government to reinforce that obligation through law. That is why I was so pleased to be able to announce that a family relationship centre is to be built in Nowra where, hopefully, some of these issues can be resolved before they go to a court of law.

This legislation imposes responsibilities on both parents, married or otherwise, that really just reflect their moral obligations. It says that individuals need to take ownership of their responsibilities and the consequences of their actions. Until that child legally becomes an adult, both parents will continue to have a role to play and to share the burden of that role. It has been far too easy for one or the other to simply walk away. How many have rationalised their abrogation of that responsibility by saying, ‘Well, the kids are not with me, so why should I contribute if I do not get something out of it?’ That is just mercenary, and it is selfish. To them I say: why, then, should someone else pick up the tab for you? As a taxpayer, why should I have to subsidise your irresponsibility? Take ownership of the problem and, if you do not like the consequences, work like hell to make sure you do not have to suffer them. That is why I welcome these provisions compelling intending divorcees to seek counselling beforehand, to get unbiased information that possibly they may not have and to deal with their anger and frustration without inflicting the pain on innocent bystanders.

The provisions in this bill impose obligations to do certain things, including a presumption of shared responsibility, although there will be instances where that will not be realistic due to the personal failings of one or both of the parties. The court will be able to take this into consideration in the course of their deliberations. It will be a right of the child to know their parents and to be protected from harm. The provisions in this bill compel parents to make a genuine effort at prevention, to attempt to resolve their differences before opting for the courts as a first preference. We need to ensure that some responsible thought processes are undertaken rather than indulging in the luxury of selfish considerations.

Not all parents may have the intellectual or emotional capacity to consider such matters, so having a third party made available will go a long way in addressing some of the problems associated with immature personalities. This includes the ability to hand the care of the children over to the grandparents. I have seen numerous occasions of this situation, where the grandparent has had to take over the role of the parent of their children’s children. It is a sad manifestation of today’s society, but that is another issue again. There is no denying that the need for custodial grandparents could be largely avoided if the parents were more responsible.

The bill will enhance provisions to deal with people who continue to resist exercising their obligations. This is zeroing in on recalcitrants in the most effective means possible. I particularly welcome the provision which will stop the systemic abuse of AVOs, apprehended violence orders. I have seen so many innocent parents, usually the male, victimised by the other parent simply out of spite. They have been put in the position where they cannot afford legal advice and they simply have to cop it. This is manifestly unfair, as indeed are many provisions of the existing legislation.

It is time for a change, because the children have been treated like the common goods and chattels of the relationship. They are so much more than that and worthy of respect. This bill will not solve all the problems in modern-day relationships in our society, but it does go a long way in addressing some of the travesties that have been passed off as legislative resolutions. My colleague the member for Hume has been an ardent advocate of many who have felt the brunt of these failings. The no-fault legislation did not mean no responsibility, but it did contribute to the erosion of parental values—of that I have no doubt. I welcome this legislation because it will mean that I will see less and less of cases where despair is the currency of an individual’s life.

In closing, I do have one criticism, and that still has not been addressed but definitely needs to be. It is the question of access. It was always my understanding that if a court gives access to the non-custodial parent, usually the father, then it should be upheld.

A division having been called in the House of Representatives—

Far too many cases have I seen where such rulings have been abused and ignored simply to punish the other partner. I have seen grown men cry because the mother has denied lawful access to the father for reasons that are no more than a form of retaliation and petty vindictiveness. Everyone deserves a happy life, and none of us was put on the face of this earth to be used as a pawn for another’s selfish intent.

Gilmore has over 8,000 recipients with the Child Support Agency. Whilst this bill does not address the latest announcements of proposed changes, I would like to place on record that these changes have been made with 10 years of my involvement in discussions over child support issues and family relationship issues. These changes are long overdue. I encourage anyone who is still not sure to either contact their local member or make sure that they contact the Child Support Agency.

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

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

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

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

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

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

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

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

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

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

A division having been called in the House of Representatives—

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

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

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

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

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

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

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

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

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

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

Alby Schultz (Hume, Liberal Party) Share this | Link to this | Hansard source

I welcome the opportunity to speak in support of the Family Law Amendment (Shared Parental Responsibility) Bill 2005. First of all, I must thank the Attorney-General for his commitment in pursuing these reforms, which will most certainly be the most significant changes to our family law system in 30 years. They are startling facts that more than one million children in Australia have one parent living elsewhere and that one in four children from separated families see their non-resident parent only once a year or not at all. This is a situation which has developed in Australia over many years, unchecked by governments of the day. Family law is one of those difficult issues which has gone unaddressed for far too long—until the Howard government had the courage to tackle it head-on.

These reforms represent a generational change in family law and aim to bring about a cultural shift in how family separation is managed—away from litigation and towards cooperative parenting. These changes are about what is best for the children. From a local member’s perspective I can confidently say that these reforms will touch the lives of an enormous number of people in an intimate and personal way, unlike any other legislation to come before this House in the Howard government’s very successful 10 years. I applaud the Attorney and all of those people who have been involved in preparing this bill.

After the research and consultation I have conducted during the past two years or more into the issue of child support, I am completely aware of the public’s desire for family law changes. And I do not say that lightly, as I have somewhere in the vicinity of 3½ thousand detailed cases on the issue. These reforms are, let me reaffirm, long overdue. I will read from just a handful of the emails I have received during the past week from ordinary Australians who are desperately awaiting the outcome of these reforms. During the past 12 months I have received thousands just like them. I quote:

I am writing to you on behalf of my situation on being a single father. I am only 21 years of age and bare the beautiful gift of a child that I don’t get to see, for I am clouded by laws preventing me from having a 50/50 relationship with my child. Inside me I am tearing up as I love my child as much as anyone loves their own. I haven’t seen my child since Christmas, and I still have the gifts that are hers that I never could give her.

Another one says:

I have recently separated. My ex allows me to see my 15-month daughter every Wednesday and every second weekend. Four nights a fortnight. I’ve have gone from caring for my daughter every morning and night to this. I am not a baby sitter. I am a great father and I want to have as much time as I can with Maiah, while being fair to her mother. This is a cruel and outdated system from the dark ages. Men now are so hands on with raising their children there must be changes made to keep it fair.

This is another one:

I am writing to express my concern at the consistent ignorance of the rights of children to spend equal periods with both mothers and fathers. I am a happy single father and I have been locked out of my son’s life by his mother and the courts. It is my son who is suffering, not me or any one else.

And the letters go on. I think that is the basis of the benefits of these changes. It is about the children and the rights of children to have access to their parents.

I applaud the fact that these reforms insert a presumption of equal shared parental responsibility, although there are of course some parents who choose not to be involved in their children’s life. This fundamental change will ensure that parents who do wish to be involved can be involved right from the outset. Under the amendments the court must consider when making its determination whether a child spending equal time with both parents is practical and in the best interests of that child. If it is not appropriate the court must consider substantial and significant time, including being involved in the child’s day-to-day routine, not just weekends or holidays. However, there are still parents out there, most of them fathers, who believe that this change does not go far enough. They believe that there should be a rebuttal presumption of equal parenting time and that the court should be compelled to assign both parents equal time with their child. Unfortunately, this is not always possible for a number of reasons.

One element of the reforms which I am certain will provide a great deal of relief and assistance to parents is the strengthening of the existing enforcement regime. Under the changes the courts will have a wider range of powers to deal with people who breach contact orders. For example, they will be able to impose cost orders, make-up time or compensation for those who are found to be in breach of the court orders. I am really happy that that has been part of the bill because I brought to the attention of the Attorney-General a number of significant cases which illustrated the point that I made about the Family Court unfortunately not carrying out its powers when court orders were made for people to have access to their children. I will read three examples of what I am talking about that came from people to me. They were all headed ‘Dear Mr Schultz’ of course. The first one says:

I was very happy to read the recent statement you made in regard to standing up for fathers everywhere. I have been involved in a very bitter family law matter over access to my children for almost 4 years now. I have to again go to court next week to ask the court to issue a warrant for the arrest of my ex-wife because she has gone missing with my children (who I have not seen for 12 months now).

What is really unfair about the system is that I am not eligible for any legal aid assistance and have to try and take on the court system alone, and have to continue to pay $300 per fortnight in child support—and yet don’t even know where my children are.

It is such a pity that more of the elected people aren’t prepared to take a stand on this matter, which is something that can’t be swept under the carpet any longer.

The second person says:

I am a divorced father who has spent in excess of $17,000 with lawyers and family courts, and despite repeated contact orders, I have not seen my kids in over 3 years.

I was not aware how much discrimination fathers faced in this country, until I got divorced. The house went to my wife, while I was left with little over $10,000. (I had to borrow the rest from my family for legal expenses, and I did not qualify for legal aid.)

I gave my wife the house because I thought it was the noble thing to do, and yet after giving most all of the $500,000 house, I was hit with an incredible amount of child support.

I live in a one-bedroom unit, I have lost all my life savings, and I have to pay a gratuitous amount of child support every week, that does not reflect what it costs to raise a child.

It seems that in divorce, one party wins everything, and one party loses everything.

The worst thing about it is that I have been honourable in my dealings, to the point of being a fool. I live in poverty in the hope that my kids will benefit, and yet, somehow, I have also lost even my most basic right to see my kids.

Finally, I am going to read almost the full text of the email from the third person because it contains a pretty compelling story about why this system needed to be changed and why it is essential that this bill passes through this House. It says:

Dear Sir

I am very pleased to see a politician stand up for the disenfranchised dads of Australia.

I will not bore you with all of the details of my story of anti-male bias in the Family Court (FC) and the deplorable way my ex-wife treated me after we separated due to her verbally and physically abusive nature towards me. I will briefly say that when we separated she said that she would not stop me from seeing our son who was almost four years old at the time. However, as soon as she spoke to a lawyer she insisted on me agreeing to Property Settlement 80/20 in her favour. She also immediately stopped me from seeing or talking to our son despite having FC Orders to the contrary. I endured almost eight years of being allowed occasional Contact usually only when it suited her ... She would frequently deliberately commence an argument with me when I was politely attempting to pick up our son for Contact and then she would have an excuse to slam the door in my face OR she would not be at home at Contact pick up time.

I took her to FC a few times for Contravention of Court Ordered Contact, but on every occasion the Magistrate/Registrar told her she was ‘naughty’ and to not do it again. Next time I attempted Contact she laughed at me saying that she can do what she likes as the FC do not punish mothers.

My current situation is most rare (for a father) as I was awarded Final Sole Residence of our son in March 2002 with the mother only allowed once-monthly Supervised Contact supervised by a FC Counsellor. This came about after Family Services had removed him from his mother under a Child Protection Order in March 2001 wherein Family Services immediately placed him with me. The mother subsequently was diagnosed as having a psychosis with paranoid delusions. I will not bore you with the details but suffice to say that the Child Rep and Family Services both fully supported me all the way through to the Final Hearing. In July 2002, the mother abducted him from Supervised Contact and the A.F.P. found them in Northern Territory and have returned him to me. Upon being found, the mother made yet another false allegation of physical abuse alleging that my new wife and I had abused him daily. The mother has not been charged or punished in any way for the abduction as the FC Judge persuaded me not to in the interests of the child. I am sure that if the boot was on the other foot, I would have received a jail sentence or at least a substantial fine for that offence.

The main injustices that I am trying to point out are:

1.

That the FC do not punish Custodial Parents for non-compliance with Court Ordered Contact. A parent committing that offence for the first time should be given a very stern warning that any future non-compliance will be (not may be) punished by community service or a substantial fine (e.g. $1,000) and that should a further non-compliance occur the punishment will not (not may be) a reversal of Residence.

2.

That the FC do not punish mothers who make false allegations or get AVO’s raised against their ex-husbands. The vast majority of mothers do so to disenfranchise the father from the child in a vindictive act of hatred without any concern for the child.

I always paid the CSA payments in full when I was the payer and she would often spend the money on herself.

I will not go any further, because the rest of the email is about the Child Support Agency. That gives an indication of the types of case studies in the considerable database that I have compiled. I know a great many fathers will be relieved, although no doubt still sceptical until they see this particular part implemented—that is, the part where anybody who breaches contact orders will find themselves in a situation where the court will impose a penalty.

Fathers who have been the victims of frivolous and unsubstantiated claims of violence and abuse are also pleased that the court will be empowered to impose costs against those who make false allegations of violence or abuse. Having read that particular article, I do know there is considerable abuse out there, both of a physical and of a sexual nature, by some fathers of their children or their step-children—and I do not condone it and neither do decent, thinking people here. I am talking about the majority of fathers, who are good people trying to get access to their children. I can tell you, from my substantial dealings with fathers, second wives, sisters and mothers—and, indeed, former wives—that such vexatious claims are not uncommon. Indeed, that tactic is often used by angry partners to gain the upper hand in court proceedings. Take this father’s letter as an example:

I am writing this letter because my daughter needs your help. She is 3.9 years old. Her mother accused me of sexual and domestic violence ... and went to the police ... my daughter has not seen her father since then. Can you see how unfair our legal system is for my daughter? I can’t even imagine how she’s feeling.

Thank you for reading my letter and I really hope you can do something to change the situation so other boys and girls don’t have to suffer because of parents who are using the children for their own selfish reasons.

There is no doubt that, following relationship breakdowns, the delicate nature of family matters makes family law a complex and difficult issue. There is no doubt also that, given the serious deliberations associated with some of the issues I have raised, family law magistrates and judges have to take reasonable, calculated and thoughtful action. In many cases in the past, that action has not been taken. However, I am confident that this particular piece of legislation will address such matters.

As a government, we must support parents and encourage them to sit down and talk about their children’s needs and the family’s needs, before entering into the court system. For that reason, this legislation, I believe, is one of the better pieces of legislation to come through this parliament for quite some time. However, I stress that, if those discussions fail, it is the government’s responsibility to ensure that courts are able to make decisions based not on any particular gender bias issue but on the merits of each case, with a view to achieving an outcome that at the end of the day is in the best interests of the children. That is what we are talking about—those beautiful creatures that we need to nurture, protect and love all through their lives.

I am sure that no family law system will ever be perfect, as it is the nature of the beast, but I am confident that these reforms will provide relief and fairness for thousands of Australian children and their families. I thank the House for the opportunity to speak on this issue tonight. It is a very serious issue. It certainly is a very serious issue for all Australians, male and female. Nobody would argue the point that it is the child who needs to be looked after, just as nobody would argue the point that the child needs to have the love and nurturing of both parents so that they grow up in a well-balanced way that will serve them well as they go through life. I thank the chamber once again for allowing me this opportunity. I commend the bill not only to the House but also to my parliamentary colleagues on both sides of the parliament.

Roger Price (Chifley, Australian Labor Party) Share this | Link to this | Hansard source

In responding to the honourable member for Hume, I thank him for recognising that we will be supporting the Family Law Amendment (Shared Parental Responsibility) Bill 2005. He made a contribution of many parts, one of which I want to address. He talked about the area of family law being difficult and complex, and I agree with him absolutely—100 per cent. But I have heard the argument—not that he advanced it—that, because the area is so difficult and complex, we should do nothing or not try to do anything. However, as individual members of parliament, we all have a responsibility in this area to make progress and to make improvements.

There have been two radical pieces of legislation. The first was passed 31 years ago: the original Family Law Act, which brought out no-fault divorce. I support it. I have to say, the system has changed a lot from what was originally envisaged. The same goes for the Child Support Scheme. It is necessary change. But, in both instances, I believe sincerely that there has been a reluctance to try to come to grips with the complexity, the difficulty and the need for equity in both those acts.

I have had a unique opportunity. I served with the honourable member for Riverina, Kay Hull, on the inquiry that produced the report Every picture tells a story. I have no hesitation—and I have done it before—in commending her; the deputy chair, the honourable member for Fowler; and all the members who served on it from both sides. I particularly thank the member for Riverina for also recognising, in her contribution, the role of opposition members. I can say that all the members of that committee were very sincere about the job at hand and really tried to do their best. It is an aspect of this parliament that all too frequently the public are unaware and ignorant of.

As a member of that committee, I then had the privilege to be added onto the House of Representatives Legal and Constitutional Affairs Committee, which considered the first draft of this legislation. Again, I congratulate the members of that committee not only on their generosity and tolerance in accepting me as an additional member but also on the way that they genuinely tried to come to grips with the legislative changes. I think that they did a good job.

There are a couple of things I want to draw out. Let me say from the outset: I sincerely hope that this bill works and that all the expectations we have of the impact that this bill will have on men and women—and, in particular, on children—are realised. I have some reservations, I have to say, but it does not mean that I come here with ill will.

I did want to return to the report of the Legal and Constitutional Affairs Committee because there is one recommendation in that that has not been picked up by the government. It was a unique recommendation. It was that two parliamentary committees that I sincerely believe had earned their spurs should tackle the issue of family violence—that is, the Legal and Constitutional Affairs Committee and the House of Representatives Standing Committee on Family and Human Services—and tackle it from both ends of the spectrum. I know of no member in this place who can be happy about the violence perpetrated, in the majority of cases, upon women. I recognise that a lot of the responsibility rests with state governments. But, equally, there are frivolous claims of violence.

I know some speakers have referred to a number of studies that have indicated that frivolous claims are not there. So how do I substantiate the statement that there are frivolous claims of violence? Well, I can tell you that I have spoken to a number of lawyers who practise in the Family Court. In fact, I have in mind a QC who only operates in the appeals section of the Family Court. He said to me that perjury is rife in the Family Court, and that is true. The strict rules of evidence—and I understand why—do not apply to that court. In some ways it handicaps the court; in other ways it assists the court. But let no member of parliament be under any illusion. Perjury exists in the Family Court, and hence my assertion that there are frivolous claims of violence.

In proposing that these two committees look at the issue of family violence, it would be unreasonable for the opposition to suggest that we could not look at frivolous claims of violence and that, equally, for government members—and I do not believe they necessarily had that view—we should exclude the actual incidence of family violence. By and large, under the current arrangements, women—who are the majority victims—actually have to be bashed twice before the system springs into action. In any magistrate’s court on the day for these apprehended violence orders, magistrates turn them out like sausages, so often the person who is the subject of the apprehended violence order is urged not to resist it. But, once the order is placed upon them, they are forever labelled in the system as perpetrators of violence. We need to do something about that.

As I say, I would be less than sincere and honest if I did not say how disappointed I was that the government did not pick it up. I have utter faith that the House of Representatives Standing Committee on Family and Human Services—the former House of Representatives Standing Committee on Family and Community Affairs—chaired by the honourable member for Mackellar, and the legal and constitutional committee, chaired by the honourable member for Fisher, would have done a good job, as they did with this legislation and as they did with the report Every picture tells a story. Why shouldn’t we have a go?

People have said to me that there have been any number of studies in this area, but politicians have a unique knack of getting in there, sensing what is wrong and knowing how to correct it. Why couldn’t this federal parliament have had a go? I understand that, as I said, major responsibility rests with the states, but why couldn’t we have gone in, had a look and seen how we could have really made an impact in this area? I think it shames us all. As I say, I think the current situation is abominable, and we need to do better. I am reminded that in my state we incarcerate people for family violence. At the current time they get absolutely no assistance in overcoming the things that led to them being charged and convicted.

I have always expressed an interest in industry policy. I do not claim to be an expert, but if you are looking at industry policy I think you would agree with me, Mr Deputy Speaker Causley, with your experience, that the first thing you have to do is understand the industry and know it—what size it is. No Attorney-General, Labor or Liberal, has ever looked at the amount of money families spend on private practitioners. When Kevin Andrews, for whom I have a high regard in this area of activity and with whom I worked some time ago, was chairman of the House of Representatives Standing Committee on Legal and Constitutional Affairs, it was estimated that family violence was costing us $6 billion. I can tell you what the cost of the Family Court is and the associated magistrate’s court, but I cannot tell you how much families are spending on private practitioners, and we ought to know. I think that if ever we did a study the figure would stagger us all. I urge my coalition colleagues—not in a pejorative way—and I urge the Attorney to have a study that looks at that. Since I first became interested in family law, I know that there have been a number of changes designed to reduce people’s dependence on the legal profession or avoid their entrapment by the legal profession, and I welcome it. This is another attempt, and I welcome it. But how much today are families—that is, mothers and fathers and often grandfathers and grandmothers—spending on private practitioners?

When I was working with Mr Andrews, the current Minister for Employment and Workplace Relations, we used to talk about three pillars in this area—that is, you had to tackle the three pillars together. One was family law, one was child support and the other was counselling. Unfortunately—and I regret to say that it is still the case, essentially, with this legislation—the Commonwealth will now be spending increased money once we know that the relationship is dead, that there is no life in it. Those Commonwealth dollars will pour out.

I know that there have been changes to counselling for those intending to get married, and I strongly support that. I would urge any couple who were intending to take that wonderful and final step of marriage to participate in premarital counselling. The problem we have today is that lots of couples are choosing not to get married, so there is no intervention point. But, again, if we can provide counselling while the relationship still has some life, slim though it might be, still some blood circulating in it, we are likely—even if we do not save the marriage or the relationship—to make communications a bit easier when it finally ends.

I know that on some of this legislation the fathers groups will say that we have not gone far enough, but I think we have made a big change. In the previous act, it certainly was up to the Family Court to look at joint responsibilities—and I could quote the sections, but I will not. But we have made it doubly clear to the Family Court that they do need to take into account the joint responsibility that both parents have to their children, and that is a good thing.

In the time left to me, I will just say a few more things, very quickly. The original committee recommended a tribunal. I have to say that I have been speaking for about nine years about a no-frills tribunal where couples can have their matters arbitrated at no legal cost. For the report Every picture tells a story, the committee actually had Commonwealth legal advice on two occasions that said that residency and access arrangements were administrative, not judicial. But there is a problem. I have forgotten the case now that the High Court dealt with concerning HREOC. It said that where a tribunal is involved in judicial matters it must be headed by a chapter 3 judge. It is a great limitation for the Commonwealth. In a state, under state constitutions, you can have no-frills tribunals—guardianship tribunals, small claims tribunals et cetera. The committee recommended a three-member tribunal. I supported the recommendation, but you can actually do it with one. The member for Dickson was very keen about an investigative arm. We are not going to get that, and I am not complaining about it.

But the opportunity exists in Western Australia—because the Family Court there still operates under the state constitution—to actually pilot a tribunal where parents can go and, by agreement, have a tribunal arbitrate their matters without any costs. I think it would be very successful. I passionately believe it would be very successful. In this area, I think it is worth trying some things, even if they do not meet our high expectations. I would say to the government, as well as to my own colleagues, getting back to the point made by the honourable member for Hume: it is complex, it is difficult, and it is emotional, but we have a responsibility as legislators to try to solve some problems. I think the Attorney did the concept no favours when he floated in the media that a tribunal would cost six times what the Family Court currently costs—$600 million. I think it was an absurd figure.

There are people that mediation suits. There are people who will have their needs met by family dispute centres. But there are lots of people who really just want decisions made about their marriage and their responsibility, their property and their access, and arbitration. The informal surroundings of a tribunal I think will be conducive to that.

On the family dispute resolution centres: good move. I am concerned about how those centres will deal with pre-existing orders. I have a concern that we need a proper accreditation regime. The other thing is the three hours of free mediation or consultation: I hope it works, but I fear it is too little. And I hope the parliament will be happy to revisit this. Let us set them up and see how they operate and then in 12 months let us have another look and ask: ‘Are they working? Do we need to do something else? Do we need to make changes?’

I passionately plead—because I was shocked in the inquiry that the Legal and Constitutional Affairs Committee conducted—that we must accredit practitioners. I was absolutely stunned that people who are employed to act as principal persons under supervised contact are not required to be accredited at all. I hope that any member of the House or public who may have strayed onto my speech does not misunderstand me. I strongly support the bill. The opposition will be supporting the bill.

I should have mentioned that, in relation to family violence, the Attorney has commissioned the Institute of Family Studies to look at the problem. I have no high expectation of the outcome. I think that over the years the Institute of Family Studies has been an absolute disappointment, from the time that Andrew Peacock first expressed concerns about it. Again, I am not trying to be churlish; I just think that members of parliament could have done an infinitely better job—and I hope the opportunity is not lost to give it to a parliamentary committee.

Whatever we do, whether it is in this legislation or elsewhere—and I apologise: I have not had a chance to look at child support—as much as we try to get things perfect, we are always going to have to test how they are working. We should not be embarrassed about testing it. We should not be embarrassed about making changes because, as you know Mr Deputy Speaker, community attitudes and norms change over time—very rapidly. And as much as we are genuine in trying to get things right, we are merely humans; we are not going to get it perfectly right. As I said, there is a dynamic society out there, with changes happening more rapidly than perhaps we are prepared to contemplate. So whether it is this bill or the child support legislation, which no doubt we will be debating at a later date, let us not be backward in having a look at it down the track. Let us not be backward about saying, ‘This has worked well,’ ‘This hasn’t worked well,’ or, ‘We need to strengthen things here.’ What family law and child support really need is committed members prepared to make their contributions. (Time expired)

Joanna Gash (Gilmore, Liberal Party) Share this | Link to this | Hansard source

I move:

That further proceedings be conducted in the House.

Question agreed to.