Shayne Neumann (Blair, Australian Labor Party) Share this | Hansard source

It's a great oddity of Australian family law that although the Australian Constitution section 51(xxi) says the Commonwealth has the power to make law with respect to marriage and subsection (xxii) says the Commonwealth has the power to make law in relation to divorce, matrimonial causes, parental rights and the custody and guardianship of infants, Commonwealth governments of both persuasions, conservative and Labor, vacated the field until 1959, when the Matrimonial Causes Act came into being. It commenced operation in February 1961, and that act has provisions which we would find utterly reprehensible. The concept of fault divorce still remained there, as did five-year separation. There were other grounds for divorce: adultery, desertion or refusal to consummate. It had a provision in the law for the restitution of conjugal rights, which is just an astonishing thing in today's understanding. Habitual cruelty, rape, sodomy, bestiality, drunkenness, intoxication by drugs, frequent conviction or imprisonment were a whole range of grounds for divorce.

The brainchild of Lionel Murphy and Gough Whitlam in the mid-1970s saw no-fault divorce brought into this country, with the Family Law Act commencing operation in 1976, and for the first time we saw men and women being treated with equity and equality. Previously, women were very much disadvantaged, and we saw it in the states and territories. For example, in Queensland it was very hard, before the Matrimonial Causes Act, to get divorced. It was very difficult. Western Australia and Victoria were more liberal. New South Wales had a provision that one act of adultery by a man was a ground on which, provided there was aggravation, a woman could divorce the husband. But one act by woman would actually constitute the ground for a man divorcing his wife. It's extraordinary in today's environment.

The Family Law Act, which had one ground for divorce—irretrievable breakdown of marriage, evidenced by people living separately and apart for a duration of 12 months—was revolutionary. But also it was revolutionary in the sense that women for the first time had a fairer deal with respect to property provisions, because we had provisions that we know very well under the Family Law Act, such as section 79(4) and section 75(2), which took into consideration the contribution of women as homemakers and parents, or indeed both parties as homemakers and parents, but contributions generally and other factors, which were justified changes. We now have cooperative arrangements through the states and territories, eventually to the point where the Family Law Act's area of jurisdiction covers the field, though the Commonwealth government, in this country.

The legislation before the chamber today I think is a good piece of reform that changes a bad mistake made by the Howard government in this space back in 2006, and the changes have an enormous amount of support. The Law Council supports it. There have been dozens of reports in relation to family law in the last few years. But I think the changes here are focused on the best interests of children. They get rid of the hierarchical situation of primary and additional considerations and the misunderstanding that was so obvious if you practised in this jurisdiction, as I did for nearly a quarter of a century. You end up realising how often litigants were under the misunderstanding that equal shared parental responsibility meant equal time and how often people were misled by legislation which I didn't think was in the best interests of children. The Family Law Act needed change and needs change here today.

The government released an exposure draft in January this year, with an explanatory consultation paper. There have been hundreds of submissions and over 50 ministerial briefs, and the Attorney-General's office has received 950 pieces of correspondence in the form of campaign letters. Most of the stakeholders overwhelmingly support the changes that we're making here, and they respond to very persistent calls by women's and children's safety advocates to focus more on the safety of children and to think about the best interests of children. We are repealing the presumption of equal, shared parental responsibility and providing a more concise and understandable piece of legislation in part VII of the Family Law Act. I think this will be safer, simpler, easier and more accessible, and I think it will be more just and fair for all litigants, in person as well as those represented by lawyers.

It's important for people who might be listening to understand what part VII of the Family Law Act says currently and how it needs to change. There are some good provisions in part VII of the Family Law Act, but section 60CC talks about the primary considerations and then focuses on additional considerations. There are, all up, about 14 considerations that people need to look at, which is a lot. That's because 95 per cent of cases where people institute proceedings get settled. A lot of people look at a case, and they never even go into court. They do it by parenting agreements, their own arrangements and consent orders. Even when people institute proceedings, it's usually with conciliation conferences, mediation and counselling, and, if they're represented by good lawyers, they take every step to try and negotiate an outcome that's in the best interests of children. But I don't think the provisions in the current law are focused on the best interests of children, because, while there are some statements there that are important, they are complex and difficult to understand.

One of the biggest problems is in section 61DA. That is the presumption that, in the best interests of children, there be equal, shared parental responsibility. That doesn't mean equal time, but people have assumed it means equal time, and the previous Howard government actually sold it a bit that way. When the court looks at it for decision-making, whether in an interim hearing or a final hearing, it has a look at whether, if there is an equal, shared parental responsibility, there should be equal time. If there's not equal time, should there be substantive time enjoyed by both parties in relation to the children? That might sound not that hard, but if you are in the course of that sort of proceeding, it almost gets to a point where judges and magistrates are quite often influenced in the way they determine cases. Most of them don't actually determine at a final hearing or even at an interim hearing. Most cases are resolved. That hierarchy of considerations, I think, makes it difficult particularly for women and children in an interim hearing. You see that in interim hearings all the time, where there is opportunity for influence to be put and for someone in an unequal power situation to influence the outcome.

I think a situation where the legislation is complex, repetitive and results in increased costs for clients is not in the best interests of children. I think there is very significant community confusion in relation to decision-making. There are many important schedules in this particular legislation—for a start, the idea of harmful proceedings and an order in that regard which is not quite vexatious, which concentrates, I might add, on the litigator, who initiates the order in the proceedings. The harmful proceedings orders concentrate on the effect on the respondent, and I think this is a good initiative. You can find that in schedule 5 of the amendments. The idea of bringing forward the review is something I spoke about in parliament under the last government, when they were merging the courts and getting rid of what I would describe as a specialist, standalone Family Court. I thought that having a Federal Circuit Court and a Family Court was not the way to go initially; that there should have been a standalone Family Court, in accordance with the Lionel Murphy vision. But having a Federal Circuit Court to deal with minor matters and interim hearings, with more complex and difficult cases being dealt with by the Family Court, was still infinitely better than getting rid of the specialist Family Court. We're going to bring that review forward by two years, and that's to be found in schedule 8 of the legislation before the chamber.

I think it's important that we focus on getting rid of the two primary considerations and the 14 additional considerations under section 60CC. The legislation before us lists six matters, which I think is a good focus. They are six matters which are focused on the best interests of children. They are:

(a) what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of:

(i) the child—

which I think is very child focused—and:

(ii) each person who has care of the child …

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

There's a big focus on safety in the provisions, which I think is important. There is also a catch-all phrase:

(f) anything else that is relevant to the particular circumstances of the child.

Good initiatives here are the additional considerations that First Nations children have a right to enjoy Aboriginal or Torres Strait Islander culture and that the notion of kinship and who is a family member, as put in the schedules, is broader than we would see in the non-First-Nations community. I think it is a very good thing to have a broader definition of 'relative of a child' than we have in other areas of the community. The considerations I have outlined, which are in proposed new subsection 60CC(2), and proposed new subsection 60CC(3), which talks about Aboriginal and Torres Strait Islander children, are important improvements and much, much better in relation to the circumstances.

I think there's an understanding also—and you can see it in the legislation here—of the need to get rid of the presumption of equal shared parental responsibility. If parents are separated and there's a child in the care of one parent there's joint parental responsibility. Decisions in relation to what the child wears, what the child eats and the day-to-day parental control type orders—'Go and make your bed. Go and sit up at the table'—are decisions that you make as a parent each and every day in the best interests of the children. Those decisions continue and you don't have to consult the other parent in relation to them. It's the big, long-term decisions—whether the child needs a blood transfusion, what religion the child should adhere to, where the child should go to school—that parents make on a joint basis if there's a court order that says they're to be done jointly.

This is important reform that we're initiating here. It's focused very heavily on the best interests of children. There is some codification of the common law in relation to the ruling in the 1979 case Rice v Asplund, which specified that if there's a final parenting order in place the applicant must show there's been a significant change of circumstance since the making of the order for the order to be reconsidered. That's very child focused. I like the fact that there's a provision in the legislation that deals with that. That rule is founded on the notion, as in the harmful proceedings orders I referred to earlier, that it's not in the best interests of children for there to be continuing litigation over a child or children. It cannot possibly be. My observation, having been an accredited specialist in family law, is that once people get through their initial separation and get focused on the best interests of children they tend to work together in partnership.

There are occasions where there is intractable conflict, and that's sad—it's a tragedy. I know that it's tough on people. I come from a broken home myself. I come from a situation that was hard. I spent nearly 25 years practising in family law and child protection. I know how difficult this can be, particularly in the most difficult child abuse cases that you deal with—in the Magellan List and others.

This is complex, and there are no easy answers in this area, but I think the Attorney-General has got it right. I think the preponderance of the evidence and submissions to various inquiries, including those of the Law Reform Commission and parliamentary committees, supports this legislation. I support the legislation today and I'm pleased to speak on it. I commend the member for Isaacs for bringing this legislation to the chamber.

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