Linda Kirk (SA, Australian Labor Party) Share this | Hansard source

I rise this evening to speak on the Family Law Amendment (Shared Parental Responsibility) Bill 2006. Labor support the majority of the provisions in this bill. We believe that the bill will go some way towards smoothing the rough edges in family law and will ease the process for many people who are going through separation and divorce. We commend the government for taking up some of Labor’s amendments to improve this bill. I am a member of the Senate Legal and Constitutional Legislation Committee, and we have just concluded an inquiry into the provisions of this bill. The report was tabled on Friday and made available today. I am pleased to say that Labor senators agree with almost all of the recommendations of the majority report. We are particularly pleased that the committee has recommended changes, including a redraft of the definition of family violence and a removal of subsection 117AB in relation to allegations of family violence. As I said, Labor support the main thrust of this legislation. However, we do believe there are several shortcomings. A number of those were covered by Senator Ludwig is his comments earlier today. I intend to talk about some of those in a moment and also about the inquiry.

Firstly, I would like to make some general comments about families in Australia, in particular about the area of family law. I have read recently that there are now one million children in Australia who have one parent living elsewhere. Of those, somewhere of the order of 250,000 children rarely or even never see their non-resident parent. This strikes me as a very sad situation. Of course, there are a variety of reasons behind this. Tragically, some non-resident parents do not want to spend time with their children. Some live a long distance away. In other cases, there are issues of violence or, tragically, even child abuse. Unfortunately, divorce has become a commonplace event in Australian society. In just a few generations, divorce has gone from being a rare occurrence to the situation we have now whereby we are told that around one in two new marriages will not last.

I am not attempting to make any value judgment here. I am not saying that divorce is necessarily a bad thing. We know that women in earlier generations—for example, those who suffered family violence—usually lacked the financial resources or the work skills that would have allowed them to leave the relationship. I make this comment simply because the rise in divorce has led to a dramatic change in our social landscape in Australia. For example, we now accept that a family is no longer just the nuclear family of mum, dad and the kids. All of us here will know or perhaps even belong to a sole-parent family, a step-family or a blended family. This change in the social landscape has brought about great challenges for those of us in the parliament as we seek to make laws to cover a diverse group of families who find themselves in a variety of circumstances. We are aware that any changes we make to family law will not magically help everyone. They will certainly not remove the pain that comes with a family break-up. Even in the most amicable of circumstances, a divorce or separation is a very stressful time. Indeed, the experience of divorce is known to be one of life’s most traumatic experiences, and it is often said that it is second only to the death of an immediate family member.

Parents who are used to seeing their children every day have to adjust to seeing them on a part-time basis. They also have to work out how best to help their children who are also suffering. At the same time as they are trying to adjust to life without their partner, they are also negotiating division of property and, for at least one parent, this often involves moving house and buying new household items, including quite often another set of just about everything for their children. It is not just parents and children who are affected by divorce and family breakdown. Grandparents too may find themselves unable to see their grandchildren as often as they would like, or being unable to alleviate their children and grandchildren’s distress.

Like most senators and members, I receive a very large number of letters on the issues of family law and child support. I estimate that, along with immigration, this is probably the area in which I receive the greatest amount of correspondence. Many of the letters I receive are from non-resident parents, usually fathers, who want to spend more time with their children. I also get letters from grandparents and from new partners in support of non-resident parents. I get letters from resident parents who complain that non-resident parents refuse to contribute their fair share financially or have little interest in seeing their children. Some of these letters are very disturbing. I add that there are also letters that turn stereotypes on their heads. I will give one example of a letter that I received not long ago from a man who is disabled. His wife had left him and he was raising their children alone. This man was living on a disability pension, and his wife, who was in work, refused to contribute financially to the children. On top of that, she was not interested at all in seeing her children. I give this example to indicate that this is a complex issue and that there can never be a one-size-fits-all solution in an area such as this.

I would now like to move on and discuss the substance of the bill and some of the findings of the committee. The first thing I would say is that I welcome the fact that this bill, for the first time, introduces the concept of responsibility into this area of the law. When a parent does not fulfil his or her responsibilities, whether that be a failure to pay child support or through breaching contact orders, this will now be taken into account by the courts. I might add that this notion of responsibility was one of Labor’s amendments, and we are very pleased, as I said, that this has been taken up.

There are other key issues in the bill which have bipartisanship support. Labor supports the promotion of out-of-court dispute resolution though the establishment of family relationship centres. We do, however, have some reservations about the family relationship centres, and I will come to those in a moment. Another area that has Labor’s full support is the provision that courts be required to consider equal or significant and substantial time with each parent where that is appropriate. Many senators here will recall that the idea of a rebuttable presumption of equal time custody was covered in the landmark report of 2003 entitled Every picture tells the story.

At the conclusion of that lengthy House of Representatives inquiry it was decided, on a bipartisan basis, that the rebuttable presumption should be rejected. Instead the committee proposed section 65DAA, which requires that, in making a parenting order, the court must consider whether an equal time or substantial and significant time arrangement is in the best interests of the child and reasonably practical. If such arrangements are in the best interests of the child and reasonably practical, then the court must make an order for those arrangements.

We were also pleased that the government supported our amendments which guarantee that parenting plans must not be made under duress, coercion or threat. When the bill was debated in the House of Representatives, the government, as I said, accepted some of Labor’s amendments, but unfortunately they did not accept all of them. We are particularly disappointed that the government rejected the following amendments: firstly, a reversal of the requirement that an apprehension of family violence be ‘reasonable’; secondly, removal of the requirement for parties to make a ‘genuine effort’ to resolve their dispute in mediation; thirdly, a reversal of the move to equal shared parental responsibility; and, fourthly, a bid to mandate the provision of information to separating couples encouraging them to go to court.

I will now attempt to explain some of these four points in more detail. I will begin with the issue of family violence. I have spoken in this place on many occasions about the prevalence of violence against women. Almost a quarter of women who have been married or in a de facto relationship have experienced some form of violence. We know that the most dangerous time for a woman is just after she has left a relationship. This bill seeks to change the way that violence is assessed so that it becomes an objective rather than subjective definition. You might ask: ‘What is the difference between objective and subjective? Why does this cause a problem?’ The problem is that it implies that there is some acceptable level of threatening conduct. It also fails to take into account a history of abusive treatment.

Under this legislation it is no longer enough to be afraid of someone; you have to prove that you are afraid of them. Just to take an example, let us say that Mary’s husband has a history of violence and Mary knows from past experience that, when he is yelling and leans over her and goes red in the face, he could lash out and hit her. On the other hand, if Suzie’s partner exhibits this behaviour she may not be frightened. I find most disturbing this failure to recognise that there are many different forms of threatening behaviour. It is unreasonable to expect someone to attend compulsory mediation when they are afraid. I also find it ironic that the government’s own advertisements—which we have been seeing on the TV again just recently—on violence against women, as part of the ‘Australia says no’ campaign, give a range of warning signs such as threatening, controlling or possessive behaviours which may be indicators of later violence.

I mentioned earlier that I applaud the recommendation of the Senate Legal and Constitutional Legislation Committee in relation to this issue. The committee recommends:

The proposed definition of family violence should be redrafted to clarify that the test is the ‘reasonable person in the shoes of the individual and whether they would fear or have an apprehension of violence’.

There is no level playing field for parents when one person fears for their safety. This problem is compounded by the government’s requirement that the parties need to make a ‘genuine effort’ to resolve their dispute in mediation. This is a matter on which the committee received a considerable amount of evidence.

If one person sits through compulsory mediation in fear, unable to contribute, the question is: will she be given a black mark or judged as not making a ‘genuine effort’? The government announced an independent inquiry into family violence on 26 February this year. This research is being conducted by the Australian Institute of Family Studies. Labor is concerned that the government is changing the definition of family violence without waiting for the results from this research.

I now move to the question of equal shared parental responsibility. Labor wanted to amend the word ‘equal’ back to ‘joint’, as was originally proposed by the government. Parental responsibility is a separate issue from residence and contact. It is not focused on how much time a parent spends with a child. It is defined as ‘all the duties, powers, responsibilities, and authority which, by law, parents have in relation to children’.

For a start it is nonsense to presume that this can be neatly carved into two equal parts. In addition, the reason why Labor wanted the word ‘joint’ is that we think that the government is trying to create a false impression here. We believe that, if the word ‘equal’ is used, there will be people who assume that the government supports the idea of equal shared time, which, as I said, actually has very little to do with responsibility.

We are disappointed that the government voted against our amendment to guarantee in law that the move to compulsory mediation be coupled with three hours of free mediation. There are also question marks about the family relationship centres. So far we have no details about whether or not there will be proper accreditation standards, quality control or training in how to recognise family violence. As I said, family violence being the very serious issue that it is, this is absolutely critical if these family relationship centres are to operate effectively.

There is one final comment I would like to make, and again it is on the issue of violence. I am quite concerned that the government has rejected our suggestion against allowing cost orders against people who make false accusations of family violence. There is little evidence that false accusations of violence are a major problem. From time to time we hear anecdotal stories, but there is no research or statistics to back this up. On the other hand, we do know that violence against women is grossly underreported. I am pleased that the committee could see this point, and the committee has recommended that there should be no change towards imposing costs until such research that I have referred to is commissioned by the government and is made available. It is unclear whether this is an area that needs solving, and therefore the proposed obligation on the court to make costs orders against parties found to have knowingly made false allegations should not be included in this piece of legislation.

In conclusion, I would like to reiterate that Labor agrees with almost all of the recommendations of the majority report. As a consequence, we support most of the provisions in this bill. We do not agree with all that the government has proposed. We believe that there is significant room for improvement and, as Senator Ludwig indicated, Labor will be moving amendments to the bill along the lines that I have suggested. In addition, the seven-day cooling-off period will be addressed. Finally, Labor supports most of the provisions of this bill but we would like to see some amendments that would improve it in the way that I have suggested. I urge senators to support Labor’s amendments.