Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I rise to speak on the Family Law Amendment (Shared Parental Responsibility) Bill 2006. Labor welcomes the introduction of this bill into the parliament and supports the overwhelming majority of the provisions in it. Family law is not and should not be a political battle between the Liberal and Labor parties, or the minor parties, for that matter, or a tug of war between mums and dads. Family law is about providing for and protecting children. It is children’s interests that we are tasked to take care of when debating this bill. We must not forget that the children are the very reason—really, the sole reason—for the parliament’s role in intervening at all in this tricky area of family relationships. It is easy to see how the media and certain lobby groups are attracted to sensational battle-of-the-sexes rhetoric, but it is a trap politicians should avoid.

Family law is about something much more important than mothers’ or fathers’ rights; it is about children. Given this, we should be more concerned about parents’ responsibilities than parents’ rights because this is what will benefit the children. In the other place my colleague the member for Gellibrand stated Labor’s position on family law in detail. We support this bill for reasons I will explain. However, we do have serious concerns about the effect of some of the changes, especially their effect on those cases involving family violence. Accordingly, I will be moving amendments when we come to the committee stage, which may be as early as tomorrow. These will address our four most important concerns about the bill: the new definition of violence, the cooling-off period for parenting plans, costs for false allegations and the use of the word ‘equal’ rather than ‘joint’ to describe shared parenting responsibility.

Those who have followed this debate closely will note that these are only some of the amendments that Labor moved in the House. This is not because Labor is no longer committed to all those amendments; we are—and if the government were to have a change of heart, we would gladly bring them back here—but it is clear that the government has arrogantly refused to give many of those commonsense amendments the consideration they deserve. At this point, therefore, we want to focus attention on these four critical issues, issues that go to the heart of making the family law system fair, accessible and able to meet the needs of those children and parents who have suffered the tragedy of family violence.

Let me explain why Labor supports this bill. We support the measures that encourage shared parenting. It is a positive development that more parents, mums and dads, realise the value of staying in active contact with their children after separation. In particular the last decade has seen a great change in the number of fathers wanting to play a significant role in the care of their children. It is appropriate that the law recognises that patterns of parenting are in fact changing. We also support the measures that aim to simplify court processes involving children and make them less adversarial. This picks up on the ideas that are being trialled in the Sydney and Parramatta registries of the Family Court. We note that the final assessment of that trial has not yet been completed. We do hope that the government will commit to reviewing these changes, if necessary, in the light of that report when it comes down.

Labor supports changes that will promote family dispute resolution outside the courtroom. It has the potential to save a lot of time, money and frustration. This bill is part of a package which includes a significant new government contribution to the funding of family relationship services. This includes $200 million towards increased funding of services under the existing family relationship services program. Labor does enthusiastically welcome this new money. Indeed, we have been arguing for some time that these services have been sorely neglected by the Howard government. We also welcome the plan to establish a network of 65 family relationship centres. Well managed and properly resourced, this network could provide an invaluable addition to the family law system: a shopfront and entry point for advice, referral, counselling and mediation services. But being well managed is the key, and we will be closely watching these services to make sure they are—an issue I will return to shortly.

It is clear that many of these good ideas in this bill are very much supported by Labor. This is no surprise, because many of them came out of the bipartisan work of the House of Representatives Standing Committee on Family and Community Affairs, which produced the important Every picture tells a story report. Labor is proud of the contribution that our colleagues made in that report. Further, a number of aspects of this bill we are debating today come from a later review conducted by the House of Representatives Standing Committee on Legal and Constitutional Affairs, which scrutinised an earlier exposure draft of this bill. I will also come to that later in a number of recommendations made by the committee. Finally, the bill has been considered, albeit hurriedly, by the Senate Legal and Constitutional Affairs Legislation Committee. That committee has also made some sensible suggestions.

At this point it should be noted that this bill includes two important provisions that originated from the member for Gellibrand in the dissenting report from the House’s legal and constitutional committee review of the exposure draft. These provisions will temper the rights focus of the earlier draft bill with two new, important responsibilities for parents. Section 60CC, which outlines the best interests of the child test, will now require the court to consider the extent to which each parent has taken up opportunities to spend time and communicate with the child, be involved in major life decisions and pay maintenance. Section 70NCA will allow costs to be awarded against parents who make repeated nuisance claims that the other parent has breached parenting orders. Yes, they have the right to complain, but now they also have a responsibility not to abuse that right.

Those sections I mentioned before the break are tremendously important new provisions which we believe should help make sure the balance of the Family Law Act is right. Our concern was that if we focus too much on rights we risk turning a blind eye to irresponsibility. The law cannot promote rights without responsibilities. When you do so you run the risk that people will abuse their rights. While the vast majority of non-resident parents, as with the majority of resident parents, take their responsibilities seriously, the exposure draft would have rewarded those who do not. In the process it would have created huge problems in those situations where a non-resident parent is more concerned with controlling their ex-partner’s life than actually maintaining a meaningful involvement in their children’s lives. So these changes are important and are welcome.

I now turn to some of the concerns Labor have with this bill. Labor’s most significant concern is to make sure this package protects people from family violence. We believe there are parts of this bill that could be better worded to afford greater protection, and I will be moving amendments accordingly during the committee stage. Labor believe that the issue of family violence has to be taken seriously; it cannot be brushed aside just because it is too difficult. The first area for improvement of the bill involves recognising the way violence affects mediation and parenting plans. While resolutions of disputes outside court are to be encouraged, we must be sure that these resolutions are genuinely made in the best interests of children, which means they must be absolutely free of bullying, coercion and/or intimidation. If we are to make mediation compulsory and give new force to parenting plans agreed to without any professional or legal advice, we need new precautions to make sure violence and fear are not influencing agreements. Some of the Labor amendments go directly to these issues—for example, a cooling off period for parenting plans.

But one change proposed by the government could in fact make matters worse, and that is the change to the definition of family violence. Only last month the government announced an Australian Institute of Family Studies research project into family violence and family law, but before it gets results from this inquiry it wants to change the definition of violence, with next to no reasoning or basis for it. The bill before us would move from a subjective to an objective test of family violence—that is, it would now require a person to show that they had a ‘reasonable’ apprehension of violence.

This is an unsatisfactory approach. First, there is an implication that some forms of violence or threatening behaviour are acceptable as long as a ‘reasonable’ person would not feel afraid. This gets courts into the very tricky business of deciding what conduct would scare a ‘reasonable’ person. We should not put courts in this position. Parliament should be very clear that there is no such thing as acceptable violence. Second, this definition does not provide scope to consider the particular circumstances of the victim—for example, a person who has previously been exposed to violence may be more sensitive and fearful in circumstances where another person might not be. Third, an objective definition is not helpful where we are dealing with who should or should not attend mediation. When it comes to mediation, it does not matter whether or not one party is ‘reasonably’ fearful of the other. Even an unreasonable fear will affect the power balance between the parties. It is simply not fair for us to force people into mediation in those circumstances. At the very least, a subjective definition should apply for the purposes of the exception to compulsory mediation.

This bill does effectively introduce a new system of compulsory mediation, with some limited exceptions. Labor are happy to support this shift, as it could help that category of cases where a separating couple has not been able to reach agreement on their own but are not so entrenched in their attitudes and disagreements as to require final orders from a court. Indeed, we can recognise that court proceedings, because of their adversarial nature, can in themselves make reaching agreement even more difficult. In these cases, compulsory mediation before litigation could act as a useful circuit-breaker before a dispute escalates. However, compulsory mediation could carry serious consequences if it is not implemented in the right away.

In our view, compulsory mediation will require the following conditions. First, it must be accessible. We welcome the government’s promise of three hours of free funding in every case, but we want this in the legislation as a precondition for compulsory mediation. If the government changes its mind, if this becomes another of Mr John Howard’s ‘non-core’ promises, we cannot require people to attend mediation at their own expense. The second condition is that staff must be well trained. We all agree that cases involving family violence or entrenched conflict are not suitable for mediation and should be dealt with in the formal court setting. In practice, in order to get this right we need to be confident that the FRC staff can recognise the signs of violence and entrenched conflict and understand how to make appropriate referrals. If mediators do not do this, and try to force mediation in inappropriate circumstances, we may have some disastrous, even tragic, outcomes on our hands. Similarly, acknowledging the complex emotional context of family separation, FRC staff need to be adequately trained in dealing with violent situations when they arise in the course of mediation.

Next, the government must assure quality of services. Training staff is not enough—the government must also ensure that the quality of mediation services is to a consistently high standard. I have to say I am alarmed that the government’s operational framework document contains key performance indicators which seem to prioritise the quantity of parenting agreements reached rather than the quality of services provided. We need to make sure that the incentives for centres are right: too much focus on quantity could actually encourage staff to push people into agreements that are not sensible—or, in fact, appropriate—because they are rewarded on their churn rate. We are talking about dealing with complex family relationships here, not sausage factories, and Labor will be watching this aspect of this implementation very closely. It is a matter that the Department of Immigration and Multicultural Affairs learned at their cost—that, in fact, quantity should not put aside quality outcomes.

Centres must not pursue ideological or religious agendas. These centres will be funded by government to provide services, not to promote their own agendas. We know that there are many views in the community on issues like relationships, divorce, parenting and so on. These are complex issues and our society benefits from hearing many points of view. But government funded relationship services should not be used as vehicles for this sort of advocacy or social engineering. The Attorney-General has to take personal responsibility to make sure that this, in fact, does not happen. And of course, lastly, centres must not discriminate. If centres are to be accessible to all people, the government must ensure that they do not discriminate on the grounds of gender, ethnicity, religion, disability or socioeconomic disadvantage.

At the end of the day, the implementation is the personal responsibility of the Attorney-General and his colleagues. On passage of this bill the opposition will continue—as it has done in other areas—to closely watch the FRC roll-out, and we expect the Attorney-General to be completely transparent about the process. We will make sure that he is held personally responsible for any failures.

As I have indicated, although we do have some significant amendments that will improve the bill, Labor supports the key principles involved in this package of family law reforms. There is bipartisan agreement on the important issues: encouraging shared parenting responsibility, encouraging non-litigious resolution of disputes, allowing more flexible and less formal court procedures and others. The amendments we propose will simply strengthen the family law system’s capacity to deal effectively with those cases where family violence is an issue. They do not undermine any of the fundamentals of the plan—indeed, most of them simply revert to the Attorney-General’s original plan in the exposure draft he produced. This is an important bill and Labor believes it will improve our family law system. Labor’s amendments will simply make it better and I urge senators to support our amendments and the bill itself.