Dennis Jensen (Tangney, Liberal Party) Share this | Hansard source

The issue of family breakdown and the involvement of children in those family breakdowns is a very sad affair. It is an issue I brought up in my first speech in October 2004. I recall relating a case where a custodial parent in Sydney had not allowed the child on an aeroplane to meet the non-custodial parent in Perth, despite agreement that that was to take place. In fact, when the non-custodial parent called the custodial parent, the reaction was: ‘Well, I did not want that to happen.’ Clearly, this is totally inadequate.

I have heard so many stories in my electorate of Tangney that are really tragic. I have had numerous non-custodial parents come to me. They speak about their lack of involvement in their child’s upbringing, the fact that they have no part in the decision making about what school they go to, when they see their children and the day-to-day activities of their children. Not only is this not in the non-custodial parent’s best interests but, more importantly, it is not in the child’s best interests. The child has every right to have full access to both parents—apart from, obviously, cases where there is documented violence or suspected violence.

I recall that in his maiden speech the member for Wakefield correctly asserted that it is all very well having a safety net at the bottom of a cliff in order to deal with the results of family breakdown but we need a fence at the top of the cliff to actually stop the family breakdown in the first place. I fully agree with his sentiments. I think that these are critical issues that need to be faced in our society. However, the reality is that there are always going to be family breakdowns. As much as we may not like it, many of these will not be amiable breakdowns. There will be a lot of resentment and, as such, often the children will be used as weapons. In my view, this legislation, the Family Law Amendment (Shared Parental Responsibility) Bill 2005 goes a very long way to making the situation fair, to try to take some of the heat out of these breakdowns as far as the children are concerned.

I will turn to the key changes in the shared parenting bill. I like to emphasise the name of the bill—shared parenting—because I think that shared parenting and involvement in children’s lives is so important. The first key change is to introduce a new presumption of equal shared parental responsibility. This is an absolutely critical facet. Regardless of what sort of custodial arrangements have been arrived at, the fact is that both parents are entitled to have a say and a role in making decisions that affect the long-term interests of their children, such as the child going to school, and health care and so on.

The second component of this bill requires that the court consider whether a child spending equal time with both parents is reasonably practicable. This is perfectly reasonable. Obviously, in some circumstances this is not practicable. In some circumstances the parents live geographically far apart. In those cases you still want to have maximum shared parenting responsibility, but it is not practical to have completely equal time spent with the child. However, if, as I said, the court deems that it is not appropriate to have equal shared parenting time, the court must consider that the time that then is allocated to the non-custodial parent is substantial and significant. In other words, it should not be the case that the custodial parent flicks the child to the non-custodial parent for the odd weekend and maybe school holidays. There has to be day-to-day routine wrapped up in this. Let us face it: holiday times are not the way that you live normally day to day. As such, a complete relationship between the child and the parents does not develop in those circumstances. You need to have that day-to-day routine.

The third point is that the legislation makes it the right of the child—and this is so critical—to know their parents and to be protected from harm. These clearly are primary factors in deciding the best interests of the child. The child has this right to know. The parents may bicker and may hate each other after the break-up, but in most cases it is not that one parent is a terrible person and the other is a good person. It is just that the parents have not been able to make things work and therefore they have conflict between them. But the child should be entitled to have a good relationship with both parents.

This bill will also require parents to attend family dispute resolution and make a genuine effort to resolve their dispute before taking the matter to court. All too often, you have the feeling in these break-ups that there is a reasonable possibility of getting some reasonable compromise but, as soon as it goes to court and, particularly, the lawyers get hold of it, it becomes adversarial—and this is not what we want in this regard. It is far better to try to have a cooperative system where the access to the child and, more importantly, the child’s access to the parent is decided amicably. Obviously, this requirement does not apply where there is a history of violence or abuse.

This bill will also strengthen the existing enforcement regimes by giving courts a wider range of powers in terms of custodial parents not allowing non-custodial parents access. All too often we hear about situations where custodial parents do not allow non-custodial parents access to the children and vice versa and, essentially, nothing is done about it. That is just time that has been lost. That is precious time that the child could be spending with a non-custodial parent that is gone, and it is not made up. This bill will allow the courts to make orders to insist on make-up time if the access provisions are not adhered to. This will adequately deal with people who breach parenting orders.

This bill will also require that the court take into account parents who fail to fulfil their major responsibilities. For example, it is not acceptable that a parent who should be paying child support is not paying child support and there are no punitive measures in place in terms of access or other provisions. Things like non-custodial parents not paying child support or not turning up to pick the child up when the custody allows them to do so are unacceptable, so the bill will allow the court to then change the provisions.

The bill will also amend the definition of family violence to make it clear that an apprehension of violence must be reasonable. Too often we have heard—and, I am sure, everyone who works in an electoral office has heard—of cases where this fear of violence is thrown in as a joker that trumps everything else in a custodial dispute. This bill also provides for a less adversarial approach in all child related proceedings. This is critical. As I said, too often these things become adversarial, where normally there would be some hope of having an amicable agreement.

The bill will also better recognise the interests of the child in spending time with grandparents and other relatives. Once again, I am sure that everyone here has heard of cases where grandparents come into electoral offices and say: ‘It’s terrible. I never get to see my grandchildren. My son or daughter—the non-custodial parent—occasionally gets custody, but it’s so rare that we never get to see them.’ This is not really acceptable either, because families are more than just nuclear families—they are more than just a mother and children or a father and children. There is a broader context to this that we need to consider. Given all of this, I really do think that this bill goes a very long way to addressing the problems that all of us have seen in terms of disputes where the children are significantly disadvantaged. As such, I commend this bill to the House.

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