Kelly Hoare (Charlton, Australian Labor Party) Share 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.

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