FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY) BILL 2005
Mr CADMAN (Mitchell) (11.24 a.m.)—The work done in the Family Law Amendment (Shared Parental Responsibility) Bill 2005, which we are considering today, had its genesis in 2003.
It is the result of two House of Representatives committees and numerous submissions to those inquiries in a nationwide endeavour to improve the Family Law Act and the relationships process where marriage has broken down. It is an endeavour, I believe, to help couples contemplating separation to take a second look at their intention, to evaluate what the costs may be—not just to them as parents perhaps but to the total family—and to really consider, if they decide to go ahead with separation, the best interests of the children and how their living arrangements as a couple can best fulfil their children’s needs. The committee inquiries were extensive, one being held on top of the other—one being social and practical and the other legal—and I have been privileged to be a part of both.
It surprises me to hear claims made that this has been a rushed process. This process has not been rushed at all. It has been a process of care and of consultation, with both sides of the parliament demonstrating their capacity to work together. It was only at the death knock, in the last few minutes, of this three-year examination that the shadow Attorney-General decided that, after reading about what was going on, she would lob on the table of the House a few comments of her own, which are quite at odds with members of her own party. The shadow Attorney-General has used this as an opportunity to make her mark, but she should reconsider whether any personal ambitions she may have are worth sacrificing the harmony and unity that we have had to this point. I was quite surprised to see a person with her knowledge, intelligence and experience rise to this occasion in such an inappropriate and unparliamentary way. It is inappropriate and not for the benefit of families throughout Australia—of children, of separating parents and of those who may reconcile after careful reconsideration—for her now to want to divide us on this issue and to move to a re-examination. That is what will come from this now—a re-examination by the Senate of all the work that has been done. The Senate will never accept anything that has been done in the House of Representatives.
Mr Kerr—You agreed to that at the request of the Greens and the Democrats. Labor had nothing to do with it.
Mr CADMAN—That has gone on in the Senate and I really think it is an inappropriate process. The member can rave, but the fact is that it is an inappropriate process. Work has been done on this issue and there should be no changes to the legislation. There should be no second-guessing the House of Representatives.
Mr Kerr—I agree; it is highly inappropriate.
The DEPUTY SPEAKER (Hon. BC Scott)—The member for Denison will desist.
Mr CADMAN—The House of Representatives stands supreme on this issue. I would defy the Senate, both by wit or by wisdom, to find one area that needs change. We have considered this at length over a three-year period. It does not need a second look. It does not need going over again. If there are failures on the part of the House with this issue, the Senate can revisit this act in a couple of years time. I would have thought that the Senate has plenty of committees and activity in which it likes to involve itself, without going to the extent of taking on the Family Law Amendment (Shared Parental Responsibility) Bill 2005. However, I know that the Attorney is very anxious to see this legislation passed. I will lend all strength I can to his arm to make sure that his way prevails and that there are no further amendments.
The fact is that we would not be here today discussing this if the court had listened to the House and the parliament in 1995 and 1996. The focus on children’s wellbeing was well considered by both houses at that time and substantial changes were made to the Family Law Act in 1995. But the court, with the chief justice, chose to go its own way, ignoring the wish of the people that had been expressed through this place. I think that was a very sad and a very irresponsible action of the court.
Am I criticising the court? I am perhaps criticising former members of the court, because I think that they approached the Family Law Act in a blinkered way—a way which is the most legalistic and codified of any family law anywhere on earth. Most countries have a more conciliatory approach, which would like to bring people together to solve their problems and turn back on them the responsibility for solving their family problems, rather than having a court, in a legal environment—cold, clinical, calculating—trying to deal with emotional and subjective issues. That is what Australian family law courts have been doing, and it is not appropriate that they should continue.
The House of Representatives committee unanimously recommended that the Family Court be taken out of this process and that a tribunal with a lower standard of proof and a more informal process, without lawyers, be established so that the needs of children can be carefully considered, much in the way that other tribunals—whether they be social security, immigration or others—are considered a different environment from that of a formal superior court.
But Australia and the judges have wasted 10 years. Families over that period of time might have been capable of reconciliation. They might have been able to make different arrangements. They might not have been forced into the dreadful 80-20 formula that is so much part of the ethos of the Family Court—where husbands go or do not go to court, having been told that they will see the children for 20 per cent of the time, which is every second weekend and half of the school holidays, and that the formula for payment is 60-40, fifty-fifty or whatever the formula happens to be—instead of dealing with the issue of children first of all and solving their problems. Beyond the separation, both partners remain parents, and their responsibilities can only be given up by the conscious decision of them both. Mostly, they do not want that to occur. Certainly it may be that a proportion of families, males and females, do not want any further association with their children. That is a tragedy. It happens, but we need to try to prevent it to the maximum degree possible.
This is a complete package. The changes to the Family Law Act are extensive. But the fact of the matter is that, despite the attempts of the shadow Attorney to waylay and put off track this most important issue—she has come forward with some modifications that enhance the process—the government has seen fit to reject her bid to reverse the requirement that an apprehension of family violence be reasonable.
One of the sore points of all the inquiries that I have been involved in has been that nobody in the Family Court is capable of understanding whether a threat of violence or violence has actually occurred, because the violence and assault processes are a matter for the courts of the states. So the federal establishment of the Family Court has made it not possible to go beyond the point of federal law. It is now a requirement of this proposed act—and it is a requirement that the government intends to adhere to—that the apprehension of family violence must be seen to be reasonable, in that there is a real chance that violence has occurred, and it must be a provable process. It could be a thought or even an invention—and we heard in many cases that it is possible to concoct a process whereby access is denied for an unreasonable claim of violence.
We had one instance I remember of grandparents, a lovely couple, who did not even go as far as the front gate of their ex-daughter-in-law’s home in an endeavour to see their grandchildren. She was down to the local police station with a claim of apprehended violence, and an AVO was put out. So the grandparents—a retired clergyman, mind you, and his missus—trying to see their grandchildren were claimed to be violent and so were barred from seeing their grandchildren. Those are the sorts of things that the court needs to ascertain for itself. The court admits in evidence that it has not been able to do so. Yet we have the shadow Attorney-General wanting to remove a requirement that they should investigate violence, come to a conclusion and make a decision on the fact of whether or not violence had occurred.
There is also a bid by the shadow Attorney-General to remove the requirement for parties to make a genuine effort to resolve their dispute in mediation. What could be more reasonable than asking them to make a genuine effort? Part of the time something flares up and there is no reasonable effort to get back together. Many a couple have said to me and many an individual has said to me, ‘If only I had known what was in this, I would not be pursuing it. Now I’m in the courts, it has cost me a lot of dough and my lawyer’s asking for more money. How do I get out of this or how do I win the case? How do I force them to pay so that I do not owe so much money to my lawyers?’ Those are the comments of so many that have come to my office wanting relief from the dreadful process of Family Court.
It reminds me of the Dickens novel on chancery and how people are trapped into a system for year after year after year, trying to resolve a situation, and the court keeps them locked up or the other party keeps them locked in there for an interminable time. There must be a genuine effort to resolve disputes by mediation and that is a critical factor that must remain in the bill.
There is a proposal to reverse the move to equally shared parental responsibility, but nothing could be more sensible than that. Nothing is better designed to resolve the bitterness and hatred in the relationships that adults may have between them than to have—as most courts of the world require—them focus on the needs of the children and not have the court intervene with some formula or some prescription which a judge in a subjective manner needs to apply. The judges do not like it because they have to use a subjective approach rather than a legal approach. There are no laws written which can indicate how you assess people’s attitudes. We do not legislate for attitude. So there must be a genuine effort and there must also be a proposal that equally shared parental responsibility is part of the settlement process.
There is also a bid by the shadow Attorney-General to mandate the provision of information to separating couples encouraging them to go to court. The courts are not the solution and the more we can keep people away from the courts, the better the results will be. But here we have somebody who is legally trained seeking to put people back into court. I think it is a sad thing that the Australian Labor Party wants to do this.
These proposals are a very complete package. They include the provision of family relationship centres, which have some very specific roles to fulfil and a very important role in the whole process of dealing with separation. It is intended that the centres will assist a broad range of people with matters including premarriage education so that people understand what they are getting into and what relationships in marriage may mean. It does also mean that of course children have a much better opportunity to be brought up in a safe environment in a marriage rather than in a relationship. Couples are more likely to have children in a marriage than in a relationship and the children are often safer and more secure. It will provide for couples who have not separated but who are experiencing difficulties an opportunity for information and counselling. It is a very good early intervention process.
The family relationship centres will provide to separated or separating parents information, non-legal advice and dispute resolution services to help them reach agreement and to help them devise the basis of a parenting plan for the way in which they are going to provide for their children in the future. With the settlement of a parenting plan, the process then moves on to a conclusion and hopefully will not need to go to court. The court will require a parenting plan once it is established. Only in exceptional circumstances will the court not require a parenting plan. So a parenting plan is a pre-requisite of getting before the court, and the court can insist on a parenting plan. Grandparents and other extended family will also be encouraged to use centres, because they also carry the stress of seeing children damaged and torn apart as their parents separate.
There will be national standards for the centres. There will be consultation with all the stakeholders necessary, approved organisations and accreditations for dispute resolution practitioners, including rural outreach. The processes of family law, including the removal of children, have been considered by the Family Law Council. A number of issues are still to be resolved with regard to that, but generally speaking I would say that this legislation is far-sighted. I think some of the changes—such as the responsibility for equal share of decision making in regard to children and the need to consider, first up, the fact of equally shared time and the practicality of that process and then to grant, through a further rigour, requirements for access to the children and an intention to impose some penalties, some discipline, in the process of providing access, with the prospect of the person not providing access having to pay for all court costs—are far-sighted.
It would be my intention that this House consider to finetune the Family Law Act. We have wasted 10 years, forced on us by the Family Court of Australia—and probably by the personal attitudes of the former Chief Justice, not the current Chief Justice. This House will be watching very carefully the process through the current Family Court. I know that, should those on either side of this House detect any intention to subvert the purposes of this House, the laws will be further dealt with and strengthened—as we are doing this time.
My colleague Roger Price, from the electorate of Chifley, is really committed to this process. I saw him struggle when, in government, the Australian Labor Party sought to initiate changes, and I saw his disappointment when they were not brought to fruition. It is not the intention of this parliament, of members on this side or on the opposition side, to see the efforts that we have made on this occasion fall into futility, as they have in the past. It is our intention to monitor the process and to make sure that the changes that we think are beneficial, first of all, for children and then for separating couples and then for a more peaceful and harmonious relationship, if that is at all achievable on separation, are brought to a successful conclusion should they need further attention as time goes by.
Author: The Hon Alan Cadman MP
Source: House Hansard - 1st March 2006
Release Date: 1 Mar 2006