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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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