Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Link to this | Hansard source

I rise to speak on the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010. The family law framework largely deals with parenting arrangements and ensuring that they are in the best interests of children, particularly in situations in which they are at risk or where their parents or carers are separating. Child protection is principally dealt with on a state and territory basis under state and territory legislation, while parenting arrangements are dealt with under the Commonwealth Family Law Act 1975. Australian domestic law also enshrines some of Australia’s responsibilities under international law. Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which is dealt with in the Family Law Act 1975.

Notably, on 22 May 2006 under the former Howard government, this parliament passed amendments to its Family Law Act 1975. The Family Law Amendment (Shared Parenting Responsibility) Act 2006 applies to any court matter concerning children who were in court on or after 1 July that year. A stated objective of this law is to guarantee that the best interests of children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child. The primary objective of this law is to ensure that the courts always have the best interests of the child as the overriding consideration.

Earlier, in December 2003, the House of Representatives Standing Committee on Family and Community Affairs tabled a unanimous report titled Every picture tells a story. The committee was asked to consider whether ‘given that the best interests of the child is the paramount consideration, what other factors should be taken into account in deciding the respective time each parent should spend with their children post separation’. The committee, headed by the then member for Riverina, Kay Hull, heard evidence from more than 2,000 witnesses over the course of the six-month inquiry. One of the findings that informed its many recommendations was that the entire committee—across party lines—believed the following: ‘sharing responsibility is the best way to ensure as many children as possible grow up in a caring environment. To share all the important events in a child’s life with both mum and dad, even when families are separated, would be an ideal outcome.’

The so-called shared parenting laws were introduced by the Howard government in 2006 in response to that report. The policy objectives of the 2006 reforms were to: help to build strong healthy relationships and prevent separation; encourage greater involvement by both parents in their children’s lives after separation and also to protect children from violence and abuse; help separated parents agree on what is best for their children rather than litigating through the provision of useful information and advice, and effective dispute resolution services; finally, establish a highly visible entry point that operates as a doorway to other services and helps families to access those other services.

The changes to the family law system included changes to both the legislation and the family relationship services system. The main elements of the legislative changes were to require parents to attend family dispute resolution before filing a court application, except where there are concerns about family violence and child abuse, and to place increased emphasis on the need for both parents to be involved in their children’s lives after separation, including the introduction of a presumption of shared parental responsibility. It also aimed to place greater emphasis on the need to protect children from exposure to family violence and child abuse and to introduce legislative support for less adversarial court processes in children’s matters.

Face-to-face contact between children and their non-resident parents is an important part of parenting after separation. The 2006 family law reforms, which introduced the presumption of shared parental responsibility, have been the subject of misinformed criticism in some sectors. The majority of those were answered by the Australian Institute of Family Studies longitudinal survey and the Family Law Council’s report to the Attorney-General. These reports found that the 2006 reforms worked well and had been well received in the community. In particular, the number of court filings in children’s matters has been reduced by 22 per cent, which has resulted in speedier and more dedicated access for the less tractable and most worrying cases. The family dispute resolution process was very highly rated by its users. A substantial majority of parents with shared care reported that the arrangements worked well for them and for their children.

One of the most controversial issues, however, arose from the reported cases in which mothers were allegedly being confined to remote communities by orders requiring equal parenting time for fathers. The coalition’s view was that the making of such orders arose from a misinterpretation of the reforms. In March, the High Court handed down its decision in MRR v GR, holding that court orders for shared time must be in the best interests of the child and reasonably practicable. The court held that restricting a mother to a certain location which denied her employment opportunities and caused her distress was neither in the best interests of the child nor reasonably practicable.

The view of the Attorney-General’s Department is that the decision casts doubt on the validity of certain parenting orders made pursuant to the reforms. The orders that may be affected are those where the parents have equal shared parental responsibility and the court has not considered certain criteria relating to equal time or, if the case requires, substantial and significant time in accordance with section 65DAA of the Family Law Act 1975.

As mentioned in the bill’s explanatory memorandum, the bill creates new statutory rights and responsibilities and ensures that these are exercisable and enforceable as if they had been made under the act, while preserving appeal rights against orders affected by the High Court’s decision. Those people with contested parenting orders will be able to commence fresh family law proceedings, where the court did not consider the reasonable practicality of the order, without having to demonstrate a material change in the circumstances.

The bill also amends the act to permit a court to consider the statutory criteria in subsections 65DAA(1) and (2)—the best interests of the child and the reasonable practicality of the arrangement—in relation to applications for consent parenting orders where the parents are to have equal shared parental responsibility. This will allow the court to give appropriate weight to agreements between parents.

The bill does not interfere with the 2006 reforms but seeks only to remove doubts as to the validity of orders made between the commencement of the reforms and the High Court’s decision. The few decisions that confined women to remote communities were a misinterpretation of the provisions, created misleading perceptions in the community and resulted in genuine distress for a small number of parents. The High Court’s decision and this bill should put the misinterpretations of the reforms to rest and reinforce the importance of the best interests of the children as the basic principle underlying the provisions of the act. I therefore commend the bill to the House.

Shayne Neumann (Blair, Australian Labor Party) Share this | Link to this | Hansard source

I speak in support of the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010. Basically, this bill arises out of a decision of the High Court of Australia in MRR v GR (2010) HCA 4. That full court decision was handed down by Chief Justice French and Justices Gummow, Hayne, Kiefel and Bell on 3 December 2009. The reasons were published on 3 March 2010. This bill overcomes difficulties caused by that decision.

The genesis of this goes back to the 2006 amendments to the Family Law Act. I was critical of those amendments at the time in a number of fora—I was then practising as a lawyer and not yet a member of this chamber. The 2006 amendments went too far and the Howard government got it wrong with respect to family law changes at that time. A culture of expectation has developed amongst lawyers, the general public, the community at large, family consultants, judges and magistrates that equal parenting time is what happens. In fact, that is not the case.

What happened at the time was that part VII of the Family Law Act was rewritten to create a hierarchy of considerations. There were primary considerations that a court had to consider and additional considerations the court could then look at if necessary. But a very complicated procedure was put in place whereby the court’s discretion with respect to family law, which could be found in the old part VII, was severely fettered. As a result, in many cases women were handing over children—particularly in what we used to call ‘contact arrangements’—in circumstances where they felt they needed to be ‘the friendly parent’ under the amendments and where they feared adverse findings by a judge or a federal magistrate, which would impact upon the continued residence of their children with them. The consequences of that were devastating for many children and, contrary to what the previous speaker said, those amendments have caused anxiety, distress and other difficulties in our family law system, in the Federal Magistrates Court and in the Family Court of Australia. This is not something that is esoteric, vague or obtuse; thousands of children every day, every week, every month are subject to orders of the court.

Relocation cases are very difficult, and this is a relocation case, and as a result of the decision that was handed down changes are necessary because of the High Court’s reasoning. The changes here are necessary because the best interests of children are always the paramount consideration. That is what it says in section 60CA of the Family Law Act. That, of course, is the new provision put in by the Howard government, but it was always the case in the old legislation stemming back to 1975 that the best interests of the child were the paramount consideration.

Section 61DA(1) provides a presumption, and it is a rebuttable presumption, of equal shared parental responsibility. Of course, that is what a court must look at. It must determine whether in fact there is equal shared parental responsibility and, having found that, the court then looks at whether there should be equal time and whether it is reasonably practicable for that to happen. That is always appropriate and only fair when there is a meeting of the minds between the mum and the dad and when there is geographical proximity—and often that is not the case when the tyranny of distance in a big country like Australia causes that not to happen. If the court finds that it is not appropriate for there to be equal time, the court then looks at whether there should be substantial and significant time with each parent and whether that is reasonably practicable. If that is not the case, then the court looks at any other orders it could make having regard to the hierarchy of considerations, the primary considerations being whether a child should have a meaningful relationship with both parents and the need to protect children from abuse, neglect and family violence.

What happened in this particular case—and this happens every day in this country—was that a child was born in 2002 as a result of a relationship, a father moved to Mount Isa in order to gain work experience as a graduate mechanical engineer with a mining company for a couple of years and the parties separated shortly after they had travelled back to Sydney for an awards ceremony when the mother said she wanted to stay in Sydney and the father said, ‘No, I have to go back to Mount Isa to live.’ She returned, following interim orders that were made, on 17 October 2007, and at a hearing before Federal Magistrate Coker—the mother and father were living in Mount Isa—he made the decision that the child live with each parent on a week-about basis.

His decision was upheld by the full court of the Family Court and then the case went on appeal to the High Court of Australia. Interestingly, my good friend Graeme Page SC—an old colleague of mine from the Family Law bar in Brisbane—was counsel for the respondent in the case. Graeme is an excellent barrister and it was always of some regret to me that he was never appointed to the Family Court bench. I think he would have been a worthy participant on the bench. He is a very fine lawyer indeed, one of the best barristers practising family law in Queensland.

The matter was considered by the High Court of Australia and the appeal really revolved around the interpretation of section 65DA, which requires the court to consider whether a child spends equal or substantial and significant time with each parent and whether it is reasonably practicable for that to happen. The court was indeed critical of Federal Magistrate Coker—again, a good federal magistrate in my experience; I appeared before him on numerous occasions—and his interpretation particularly of section 65DAA. The court made reference to the words at the beginning of subparagraph (c) of that section and the words ‘if it is’. When making an order a court must consider the findings it has made. In most cases where a Family Court order or a Federal Magistrate’s order is made, there is no finding made, effectively, and no reasons given because often they are consent orders. The parties have agreed to file consent orders in the Family Court or the Federal Magistrates Court, sometimes during litigation and sometimes before litigation starts, and they lodge those with an application to get them approved. Often a registrar, a federal magistrate or a judge will consider the matter and, if it looks in order, make the orders by consent.

The problem is that the court is not really making any findings there. Section 65DAA requires the court to consider the issue if it is making an order. That is where the problem lay and that is why these things need to be changed and why this bill is before the chamber right now. It was necessary for Federal Magistrate Coker to consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances, having made some findings. So the court did acknowledge that His Honour Federal Magistrate Coker ‘did not expressly address the issue of whether an equal time arrangement would be “reasonably practicable”‘. That is where the problem lies. This is not an obtuse problem. It really is a very significant problem because in every registry across the country—in Sydney, Melbourne, Brisbane, wherever it may be—decisions are made all the time, as I said, without those findings taking place. This bill responds to that decision, which casts doubt on the validity of those kinds of parenting orders made, or purported to be made, without the court providing findings about the criteria set out in section 65DAA of the Family Law Act.

The bill creates certain statutory rights and liabilities that are in line with rights and liabilities under effective orders to ensure that those families can continue with their parenting arrangements pursuant to valid orders, and the statutory rights and liabilities can be relied on in the circumstances. The bill validates any action that had been done. Often, as we know, orders are made pursuant to those orders and they are usually enforcement orders, and so they are valid. For parenting orders made with the parties’ consent after the commencement of the bill, the Family Court and the Federal Magistrates Court may, but will not be required to, make findings about the criteria set out in section 65DAA.

So, what we are doing is correcting a problem caused by a decision of the High Court. It really comes back to some quite sloppy statutory drafting. When you look at section 65DAA, the High Court got it right—the legislative drafting was inadequate and a problem could arise in certain circumstances. It is important that we fix this problem and remove any doubts for families affected by parenting arrangements. We need to make sure that the parenting arrangements pursuant to those court orders are valid where they are made as a result of a determination by the Family Court or the Federal Magistrates Court after a final hearing or whether it is a consent order or any sort of parenting arrangement under a parenting agreement.

It is important that schools and teachers and doctors and court counsellors and psychologists and anyone associated with families who have had a court order can have certainty and can rely upon those orders. This bill will preserve the rights of parties to appeal or seek variations of those parenting orders. It will ensure, as I said before, that the courts may, although they are not required to, consider those matters in section 65DAA when making orders after the bill commences. It is a practical and sensible change, and it fixes up a problem that has been highlighted by the full court of the High Court. I commend the legislation to the chamber.

Janelle Saffin (Page, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in support of the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010. The honourable member for Blair talked about the bill correcting a problem that was presented to us arising from a High Court decision. I know he meant that in the general sense, and it was a problem we had to grapple with—a whole lot of orders had been made over a period of years that did need to have some certainty put around them because of the decision of the High Court. I suggest that the problems started a long time before that. As the honourable member for Blair said, there was what he called inadequate legislative drafting and also there was the matter of interpretation. Interpretation is not always done in a vacuum; it is not always done in a pure black-letter sense. I can see that interpretation was somewhat of an issue with the High Court decision.

I have not had the opportunity to go back over the second reading speeches, which I did look at at the time some of these changes came in. I have always been interested in family law, having worked in the area and having worked as a solicitor as well. At the time there was a lot of discussion about shared parenting—that was the trend and that became the norm—and shared parenting became writ large as equal time. There was certainly a big push for that and a lot of lobbying. With all of those things that were happening—there was the legislation itself and the acculturation of shared parenting—shared parenting came to mean equal time and it meant you had to live almost side by side, or you had to live in close proximity to make it work, and that became the norm.

That is how I saw it, and I was interested in the issue not just from the legal aspect but also from the aspect of the best interests of the child. Every member in this House subscribes to, believes in and talks about the best interests of the child but those best interests can be really difficult to achieve in practice. Again, I have had some experience in dealing with those issues and trying to interpret what is in the best interests of the child in work that I have done before the courts, in work that I have done in juvenile justice and in work that I have done in a whole range of areas. In the early years, I was part of the lobby in Australia that got up the Convention on the Rights of the Child—and we got it up in a very bipartisan way. Giving expression to looking after ‘the best interests of the child’ can be really challenging. I have not been persuaded that the Family Court has always got it right. I say that in the context of knowing how difficult it is to get it right, particularly when the cases that come before the Family Court are usually quite protracted and there is a lot of emotion, a lot of angst and a lot of ill-feeling by the time it gets to the court for a determinative decision. That can be very problematic, and you almost need the wisdom of Solomon to make decisions about what is in the best interests of the child at that point.

I was not surprised by the decision of the High Court when I read the case and heard it reported, as I had my own views about what the section meant and how it had been interpreted and acculturated. This bill brings certainty to decisions that have been made on the basis of an interpretation of this section. That is necessary, and we as a parliament and as legislators do have to bring certainty to those orders, to those situations. I hope that arising out of this decision and our creating certainty from what has gone before we can also start to look at the whole area of shared parenting. That can mean different things in different situations—there is no formula. That is the case in many areas.

I know it can be dangerous to argue by analogy, but I am about to do it. I was on the Social Security Appeals Tribunal and we would apply the law when matters came before the tribunal for our decision and review. That can be very different to applying what had gone before us. The decision makers before us had interpreted the law in particular ways so that they could have a broad policy framework that provided certainty and allowed them to make their daily decisions. It did not mean that they always got it right.

The social security law had changed to essentially say that people who moved to an area where they were less likely to get a job than in the area they had lived in would lose their benefits for a certain amount of time. It was interpreted into a policy framework that was based on a statistical analysis that did not always apply to individuals. A lot those cases would come before the Social Security Appeals Tribunal and, given the circumstances, the policy framework would not apply and they would fail. That can happen in all areas of the law that I have seen.

I am not suggesting that it happened in this area, but I do know the climate that surrounded the decision to have shared parenting. There is nothing wrong with shared parenting—it works well when parents agree—but it can be really difficult to adhere to a strictly formulaic approach when you try to enforce something from the court. We do not live our lives like that and yet you can have decisions that require that approach. In supporting this bill, I would like to refer to the Attorney-General’s second reading speech, where he said:

The rights and liabilities created by the bill are declared to be the same, and always to have been the same, as if the court had considered the relevant matters under section 65DAA of the Family Law Act before making the order.

That is the essence of what this bill is about. He went on to say:

The approach taken by the bill is based on a similar approach upheld by the High Court of Australia in a case known as R v Humby; ex parte Rooney (1973) …

And it certainly does that. As the Attorney-General said:

The bill has two purposes.

First, it ensures that parenting arrangements under orders affected by the High Court decision continue to have effect. Second, it streamlines procedures for orders that are made in the future that provide for parents to equal shared parental responsibility for their child.

Both of these purposes are critical. With those comments, I commend the bill to the House.

Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

in reply—I would like to thank honourable members for their contributions to the debate and express my appreciation to the opposition for the expeditious consideration of the bill. The Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010 is an important bill that provides certainty to parents with parenting orders affected by the High Court’s decision in the case known as MRR v GR, which was decided earlier this year. The bill will ensure that parenting arrangements under these orders will continue to have effect, which will support parents continuing to be involved in their children’s lives.

Things done or not done that relied on existing orders will be taken to be valid on the commencement of the bill, and parents with these orders will be able to rely on them as if they had been validly made. Appropriate safeguards are provided by the bill. These include the preservation of appeal rights and ensuring parents can, in appropriate cases, vary parenting arrangements under orders—including any that were made in contested proceedings—that were not reasonably practicable.

The bill will also streamline procedures for the courts to make equal shared parental responsibility orders in the future when all parties to the proceedings consent to them. Where parties agree that parents will have equal shared parental responsibility the courts may—but will not be required to—give consideration to alternative equal or substantial and significant time arrangements. This measure will reduce costs and complexity, and it demonstrates the government’s commitment to supporting parents reaching agreement about parenting arrangements for their children.

The bill is based on previous validation legislation passed by the parliament and subsequently upheld by the High Court of Australia. In summary, the bill will provide much needed certainty for families with shared parenting orders affected by the High Court’s decision. I commend the bill to the House.

Question agreed to.

Bill read a second time.