Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

The Family Law Amendment (Shared Parental Responsibility) Bill 2006 is a very important piece of legislation. As we all know, it is immensely controversial. It is a core example of the fact that the most important work that the parliament does is not, by and large, the part that gets most of the media coverage. It is not the finger pointing, the name-calling and the point scoring. It is the consideration of policy issues and the determination and passage of legislation, because that is what directly affects people’s lives. Of course, this type of legislation is one that affects some of the most painful areas of people’s lives and for that reason it will always be contentious, it will always leave people dissatisfied and it will always fall short of the ideal.

I come to this piece of legislation having sat through the day’s worth of public hearings into the legislation as it reached the Senate, but also having followed the progress of it through previous inquiries—from a distance as it were, I suppose, but certainly as an interested observer. As a legislator and a senator who tries to keep across issues of significance and complexity and also from my own previous background as a social worker, I am aware of the difficulties of these issues and aware of the almost impossible task of trying to put in place a legislative framework that will adequately address the competing interests.

We are all aware—I imagine most of us are, anyway—of the biblical parable of King Solomon being asked to decide the fate of a baby who is being claimed by two different women, and coming up with the solution to try and determine who the genuine parent is. That might have worked once and it might have worked in that case but I think, frankly, Solomon would have a lot of difficulty trying to work out a solution for many of the most difficult cases that come before the Family Court.

I should say that, whilst we can always find reasons to criticise specific judgments and specific institutions—and I am as willing to do so as others—we should pause for a moment to consider just how difficult a task that court has, those judges have and the others that work in that area have, including, I might say, the social workers—those that try and work with people beforehand to try and get an outcome and try to get results that can be agreed to by all the people involved, rather than having to get an outside legal determination. That is the best way, where possible, but the simple fact is that at times it does get to a circumstance where that determination has to be made. And in the vast majority of such circumstances where a determination like that has to be made, where these things are in dispute and cannot be resolved by other means, you will not be able to get an outcome that will satisfy both parents, and in many cases you will not get an outcome that will satisfy either parent.

The other aspect that I bring to the legislation is as a parent and as a father—as many of us in this chamber are. And I bring a reminder that, despite all of the advocacy we get about this aspect of family law—the aspect to do with shared parental responsibility, looking at the title of the legislation—it is about responsibility towards the child or the children. It is not about us. It is not about the parents. It is not about the fathers. It is not about the mothers. It is about the children. The simple fact is we all get lobbied about this time and time again, very forcefully, with very genuine stories. The people we very rarely get lobbied by are the children, because they do not have a voice. We will always as parents, I am sure, convince ourselves that what each of us wants in regard to contact with our child is best for that child, but we are not always, when we get in these circumstances, in the best position to judge.

As I am sure all of us here do, I get a lot of emails and other contact from people who are going through the pain of limited contact with their children. I read many of those. I certainly read all of those that come from my own state of Queensland and I read some of the others as well. It is quite clear from many of those that the pain is enormous and genuine. But the simple fact is that it is not possible in many cases for parliaments or courts to come up with a formula that will take that sort of pain away. People expect a lot of politicians, as they should, and politicians hold themselves out as having the magic solutions to lots of things—more than we should. But we do not have the magic solution to these sorts of situations and we should not present ourselves as doing so. And most of us do not, particularly in this area.

This legislation, as it has finally reached the Senate, is the result of a long process. As has already been outlined by most speakers, it is still in a situation which certainly has significant room for improvement. But it recognises that this is not a situation that can produce satisfaction for all parties and particularly not for all parents. The simple, cold and very harsh reality is that it is not about producing satisfaction for the parents; it is about producing the best outcome for the child. All of us need to try and be more realistic and more brutal about that very unpleasant reality—that that is not the ultimate goal; the ultimate goal is the best outcome for the child. It is not always the case that maximum contact with each parent will equal the best outcome for the child. That is a simple fact and there is a vast amount of research in this area that demonstrates that.

There are a couple of aspects of the legislation that I want to touch on in a little bit more detail. The lack of attention being paid to the voice of the children and the ultimate long-term needs of the child is a serious problem in this debate. It is almost inevitable, given the way the process works, that it will be the adults who get all the attention. It will be the political pressures from the adults that focus and shape the way we as politicians deal with the situation, because adults get the vote. Children do not get the vote; children do not have a voice. I am not using this as an argument to say they should, I might say, but it is a reminder that, to some extent, we have to look over the top of the understandable, nonetheless very prevalent, advocacy from adults and look at the children. It is that aspect of the legislation in particular that really concerns me.

One of the problems that were clear from the Senate Legal and Constitutional Legislation Committee inquiry into the provisions of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 is that all of us, to some extent, are making judgment calls about how courts will interpret this legislation into the future. Clearly, we would not be having this debate if most, if not all, of us did not believe there was some scope for improving the law as it currently stands. As I said earlier in my speech, we cannot ever get this legislation to a situation where it will be perfect and deliver satisfied people all round, but we should certainly always strive to continue to improve it as much as possible. What is being done in this legislation in regard to determining the best interests of the child is of concern. It remains to be seen how these sorts of provisions will be interpreted by courts in the future. That is something none of us can be definitive about, but we can make educated guesses about how it is likely to be interpreted.

Personally, I think it is concerning that the way the best interests of the child are determined is being altered in this legislation. It implements a two-tiered approach. In the second of those tiers, just under what are listed as additional considerations, is the issue of children’s views. I recognise that children of the age of two, three or four may not be in a position to give comprehensive, definitive views about what they see and what they want and, of course, that parents can influence children in what can be very stressful situations about what they might say their views are about particular situations. But, on principle, it is most concerning to have children’s views listed as an additional consideration rather than a primary consideration. That is one thing I really want to emphasise.

There are other aspects of the bill I have concerns about. Issues to do with the definition of domestic violence is one. With my background in the area of social work, it is something that is the subject of a lot of assertions as part of the wider debates in this area that I think are quite dangerous. Others in this debate, including my Democrat colleagues, have covered that area, so I will not revisit that or go over that same ground. But I also believe that the broader risk with the legislation—and just how big a problem it will turn out to be depends, firstly, on how many amendments the Senate chooses to make and, secondly, how courts end up determining it down the track—is that it puts the issues of parents’ rights and parents’ demands over and above children’s rights and parental responsibilities. It is something of a mantra, but a mantra that has a lot of accuracy to it, that ‘with rights come responsibilities’. I think there has been too much in the politics surrounding this debate in the community that has focused too much on the parents’ rights and what the parents want and not enough on the parents’ responsibilities, which have to go back to what is best for the child.

Of course, there are overlaps there. I am not suggesting that all of these things are totally discrete and separate. Nonetheless, it is a matter of different emphases. I think we are at risk of making the emphasis wrong in this regard. I have specifically attempted to take a measured approach in relation to the legislation and the language that is used because we are dealing with an issue that is very delicate and sensitive. It is an issue, as I said at the start, that is the subject of an enormous amount of pain in the community and amongst many people. Certainly, as a parent, it is an issue that I can empathise with. I certainly recognise why it causes such distress. Whilst we have to take account of that distress, we cannot allow that to dominate the decisions that we come to.

In the context of trying to ensure that we take as measured an approach to this as possible, there are two more points I wish to make. This legislation deals predominantly with the issue of legal proceedings regarding family breakdown and particularly with what happens with children and other aspects as a result of the separation of an adult partnership. It does not deal with issues of child support, the Child Support Agency and the formulae surrounding that. As we all know, there have been separate inquiries and decisions going on in regard to that. There is legislation coming through on that.

I should say that, whilst I do not agree with all of the detail of what is being proposed in that regard and I think it also warrants further investigation, clearly the formulae and results of child support arrangements as they are currently occurring do create unnecessary injustices that can be improved on. That is something that I think also needs to be examined as promptly as possible. But, on this aspect of the legislation and in this area in particular, we do need to recognise that the ultimate decision has to be focused on the child.

The other point I want to make is in regard to the comments made by Family First in their dissenting report. I heard the speech of the Family First senator earlier. I suppose that, whatever position or amendment anybody puts forward on this legislation, they will preface it by saying that it is in the interests of the child because that is the magical phrase—and so it should be, because it is the most crucial issue. But you do have to look beneath the phrase at what the actual issue is that is being proposed.

I find the assertion put forward by Family First that it is about equal parenting time rather than equal parenting responsibility a very dangerous assertion. It is not just dangerous to put something like that into law. Also, frankly, as a principle, if the way we assess who is being a good parent and who is not is on the basis of how much time each of us spend with our children, I imagine that all of us in this place for starters would be automatically lumped into the bad parenting category. Anybody who is in a situation, voluntary or employment related or otherwise, where they spend a lot of time away from their child should not automatically therefore be seen to be part of a situation that is contributing to a harmful circumstance for their child.

There are more things than time. Time is important—again, all of us here would be more than aware of that as well as the difficulties that can come from the absence of time. But it really does have some very unfortunate overtones of harking back to an old-style approach of just seeing children as property—where, as part of the property breakdown and division, parents who are splitting up look at who gets to stake a claim in the children as well as in the house and everything else. That is a mindset that we must reject categorically. Even the tiniest hint of it is something that I think must be dismissed promptly and categorically.

The other point I want to make concerns a phrase and statistic used in Senator Fielding’s speech. It was about the Family Court being the worst place for Australia’s children. It is certainly not a place that any of us wants to end up. No-one wants to end up in any circumstance where that has to be the way the final decision is made as to how a child’s future is determined with regard to contact with their parents. But it is not the fault of the Family Court that those situations develop. It is the role of the Family Court to try to make those difficult decisions when those situations occur. But, to suggest—as has been done—that, because only 2.5 per cent of residence orders are for joint parenting, therefore in every other circumstance a child has lost a parent, I think is not only misleading but also blatantly false.

To then follow it with the statement that we are in danger of creating a stolen generation is moving into the territory of very inflammatory language. That is the sort of thing that we really need to try to avoid in this debate. I will not move across into the facts, realities and history of the stolen generation and the deliberate government-sanctioned removal of children from their parents solely on the basis of their children’s skin colour. But to try to tie the immensely difficult decisions of the Family Court process about future contact between children and their parents because the parents cannot work it out for themselves with that past disgraceful practice is disgraceful in itself. It is language that we should not be bringing into this debate because it is a completely inaccurate representation of the situation that happens now and it is also a very offensive linkage to one of the more appalling practices in our nation’s history. It belittles and diminishes the reality of that appalling practice that occurred in the past.

Having said that, I look forward to the committee stage of the debate. I hope it can be conducted in a way that does try to maintain a measured approach to the difficult issues. In the intervening period, before we get to the committee stage, I certainly urge all senators and those in the community who are interested in this debate to read the Senate committee report that was tabled today. It is comprehensive and a genuine attempt by all senators, I think, to engage with this difficult issue. There are many recommendations in there to further improve this legislation. I hope people take them seriously and approach the legislation from that perspective.