Kerry Nettle (NSW, Australian Greens) Share this | Hansard source

The conceptual basis of the Family Law Amendment (Shared Parental Responsibility) Bill 2006 has been drawn from the findings of several inquiries, beginning with the 2003 report Every picture tells a story, from the House of Representatives Standing Committee on Family and Community Affairs inquiry into child custody arrangements in the event of family separation. This report recommended amendments to the Family Law Act 1975 which aimed to bring about a cultural shift in how family separation is managed.

The inquiry was the result of concerns articulated by Prime Minister Howard about the high level of ‘unhappiness with the operation of matters relating to the custody of children following marriage breakdown’ and ‘the operation of the Child Support Agency’. In his comments, Mr Howard focused on his concern that too many young boys were growing up without proper male role models. The fact that young girls were left out of these influential remarks to the House of Representatives was significant, as it set the tone of bias that permeated the following reports and inquiries that led to the development of this bill.

Given rapidly changing social circumstances and attitudes to relationships, marriage and separation, the Greens believe that some reform of the family law system would be useful. However, this government seems unwilling and unable to balance the ever-changing concerns and needs of fathers with those of mothers and their children. Every picture tells a story was followed by the release of the exposure draft by the Attorney-General, who described it as the most significant change to the family law system in 30 years. The House of Representatives Standing Committee on Legal and Constitutional Affairs was then asked to look at the exposure draft bill to find out if it adequately implemented the previous report. This resulted in further refinements to the bill. The third inquiry was by the Senate Legal and Constitutional Legislation Committee, which took a further 200 submissions and reported its findings on 24 March this year.

Family breakdown is undoubtedly a very difficult and sensitive issue and a highly emotional experience for all those concerned. Despite this, we know that 95 per cent of family law matters are resolved without the need for court orders—in other words, most people can eventually work it out for themselves. This means that it is a very small minority of the most difficult cases that end up with complex court proceedings that result in court orders. Yet it is from this small percentage of intractable cases that the most heat is generated.

While there is no question that genuine instances of injustice have occurred, it would be safe to assume that the family courts are capable of assessing the individual circumstances to find a proper balanced outcome on most occasions. This is borne out by statistics from the Child Support Agency. Where parents agree by themselves, in 90 per cent of cases they agree that the child or children will end up in the sole principal care of one person, and that is usually the mother. The latest statistics from the Attorney-General’s Department on cases with a court order show that only 75 per cent of orders are made in favour of the mother and 20 per cent in favour of the father.

The fundamental premise for these family law changes as promoted by the Howard government is that the courts do not have the balance right because they frequently discriminate against non-resident parents, who are usually fathers. This view—that the courts get it wrong--—matches the message that the highly organised fathers groups have been promoting. They argue that fathers have been getting a rough deal. Some prominent experts do not support this view. Last December, the former Chief Justice of the Family Court, Alistair Nicholson, stated that the government, through this bill, was simply pandering:

... to the strong pressure that’s been put on the Government by various militant fathers’ groups.

The academic Michael Flood from the Australia Institute shed further light on who these fathers groups are and what they believe in the report Fatherhood and fatherlessness. He described these groups as maintaining their momentum by focusing ‘on men as victims of injustice in family law’. He also noted that these groups also work:

... in alliance with conservative Christian organisations to lobby for changes in child custody and child support policies.

The author has recently argued:

The fathers’ rights movement is defined by the claim that fathers are deprived of their ‘rights’ and subjected to systematic discrimination as men and fathers, in a system biased towards women and dominated by feminists.

These descriptions are supported by the submissions to the various inquiries that have influenced the development of this bill. Many of the submissions were form letters or close derivatives from these fathers’ rights groups.

These circumstances reminded me of the RU486 debate, where specific interest groups were also able to muster a great deal of noise in the form of well-organised campaigns and multiple submissions. Yet, just like with RU486, a point made loudly does not mean it necessarily represents the best policy outcome for greater society. I agree with Alistair Nicholson and many others who argue that these very noisy fathers groups have been particularly persuasive in having their message heard by the Howard government. It is a mistake to think that a large volume of submissions necessarily represents genuine widespread community concern. In this instance, it also very important to note that single mothers, due to the obvious and necessary prioritisations, are one of the most time deficient groups within society. They are consequently not necessarily able to muster the spare time required to effectively lobby, write submissions or attend committees.

One of the most concerning aspects of this bill is the move to introduce a formulaic approach for the Family Court based on the presumption of equal shared parental responsibility. While this appears to be a step back from earlier drafts that were based on a presumption of equal time to be spent by children with both parents, there remain similar concerns about what is effectively a watering down of judicial discretion. While the government implies there is a softening of the equal time approach, the Greens and others argue that the two presumptions are essentially the same. Even Senator Fielding, while coming to a substantially different conclusion, agrees in his dissenting report that these concepts are essentially the same.

The problem is that any move to introduce such a presumption moves away from the needs and, indeed, the rights of the child to an emphasis on the rights of the parents. This is illustrated by the shift in emphasis from the child’s views or wishes to a list of secondary considerations for the court to use in determining the child’s best interests. The child’s views are now listed below the two primary considerations for determining the child’s best interest—that is, the benefit to the child of having a meaningful relationship with both their parents and the need to protect the child from neglect, abuse or violence. The Greens agree with the comments by the Human Rights and Equal Opportunity Commission that this significantly downgrades the importance of the views of the child. Similarly, the presumption of equally shared parental responsibility or time creates the situation where children are viewed as a commodity belonging to parents. Family Services Australia put it concisely when they said:

The minute you bring in the situation where you are talking about ‘equal’, it is almost like talking about property.

Children are not property, and their views, where attainable, should be paramount to any considerations.

Just like the devaluation of the needs and interests of children, this bill and the various inquiries and reports that influenced it have ignored the changing needs and rights of mothers that find themselves dealing with the difficulty of family separation. Recent evidence shows that single mothers are most vulnerable to suffering from mental health problems. Research recently published in the Medical Journal of Australia showed that sole mothers were more likely than other women to have experienced suicidal thoughts, to have used medication for depression and to suffer from depression or other psychological disorders.

In addition, many single mothers have great difficulty in correctly accessing child support payments. Recent announcements by the Howard government to overhaul the child support system have compounded these concerns and drawn criticism from groups such as the National Council of Single Mothers and Their Children, who are concerned that ‘financial outcomes for an estimated 60 per cent of children of separated parents in their primary place of residence will decline under the government’s adoption of the recommendations of the ministerial task force on child support.’

In addition, there has been widespread unease about the ability of the changes advocated in this bill to adequately deal with the issue of violence, specifically domestic violence. It must be recalled that this legislation will in the main only effect the small minority of cases that require the assistance of the courts to resolve disputes. It is equally significant that domestic violence and safety concerns are one of the key reasons that many women and children end up in the family law court. Research by the Australian Institute of Family Studies found that violence was present in 66 per cent of all marital breakdowns and 33 per cent of this was identified as ‘serious’ violence. A 2003 family law court survey also showed that over 66 per cent of the women and children who make it to the final stage of judgement in the Family Court have issues of serious physical domestic violence. The Greens are additionally concerned that the definition of domestic violence adopted in this bill is inadequate and does not provide adequately for family members at risk of family violence. This will clearly affect many women.

Yet in addition to such daunting evidence weighing against the interests of mums, there is also a troublesome new provision that effectively enforces mediation. The onus will now fall on the sole mother to find exceptions to get out of this dispute resolution process even though the statistics suggest that most of these cases will involve some level of violence. On top of this are the new provisions and substantial fines and costs to be awarded against those found to have provided ‘false allegations’. Yet this is in an area that is notoriously difficult to ascertain as the majority of cases will be his word against hers. As suggested by research published by the Australian Journal of Family Law this year, overseas experience suggests such compulsory attendance will simply add to the cost of the family law system.

The Law Society of New South Wales argued in their submission to the Senate inquiry that for some, especially self-represented litigants, such provisions will simply be a statutory licence to ‘have a go at the ex’. The list of problems with this bill points to an overall bias against women and children, the balance tipping disproportionately towards the rights of fathers. The Greens believe that to succeed any alterations to Australia’s system of family law must work to balance fathers’ concerns with the significant needs of mothers and their children. In addition, concepts such as shared parental responsibility are best applied before problems that lead to separation occur, as the game is nearly always over by the time it gets to court. Where courts are necessary, the Greens believe it is essential to empower the judiciary to find out all they need to know so they can evaluate the circumstances of individual cases and not simply enforce a regime, such as highlighted in this bill, that risks replacing all important judicial discretion and flexibility with an ideologically driven acquiesce to a vocal lobby group.