Duncan Kerr (Denison, Australian Labor Party) Share 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)

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