Ms ROXON (10:51 AM) —I am grateful for the opportunity to speak again on the report of the Standing Committee on Legal and Constitutional Affairs on the exposure draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005. I flag to those who are listening to or reading this speech at a later time that I have had an opportunity to write in detail a dissenting report on the decisions of the committee and, although I would like to discuss a number of issues that I have raised, I will not be going through each and every recommendation that I have referred to in my dissenting report. However, let me say that I think that the committee did a very good job in a very short time in dealing with a complex bill which is going to bring about significant change in the family law area. Although I have strong concerns about a number of aspects of both the bill and the committee’s report, there are large numbers of provisions in the bill which were supported and recommended by the committee that I agree with and think will be positive changes to the way family law operates. In particular, I agree with the proposal that the children’s cases pilot, which is currently being undertaken in Family Court registries in New South Wales, should be extended to the rest of the community.

I think everybody shares the view that the incredibly adversarial processes of the court are not always in the best interests of children and if there are new and better ways to run these cases that will result in less conflict then that will be of benefit to everybody. I have made those general comments and I have expressed in my dissenting report a number of concerns which I briefly summarise as being focused on violence and the way our current system handles allegations of violence in dealing with family law matters. The second area that I am increasingly concerned about is the concept of shared parenting and the way that that is proposed to be introduced into the law.

Finally, I also have a concern that there are significant risks that a number of the proposals put forward by the government—which have been supported and sometimes amended by the recommendations of the committee—will actually increase and not decrease reliance on litigation. I think everybody in the House, across parties, is trying to make this an area that is less litigious rather than more litigious. However, we may have got ourselves into a position where, although that is the aim and ambition of many on both sides of the House, a number of the changes will not result in that outcome.

I want to put on the record that I do not intend, today, to recanvass the issue of family relationship centres and the government’s proposals for handling that. I notice that the member for Wakefield is here and he will obviously play a role in the committee that the government has set up to oversee this. I have expressed my reservations and concern that this is politicising the process in a way that will be unhelpful for the community—and in the longer term for the government as well. I intend to focus on the provisions of the report and particularly the issue of shared parenting, because I have not had an opportunity to do that in the detail that I can go into today.

I would first like to focus on the issue of violence. I have expressed a concern that the cumulative impact of the changes in the bill and a number of the committee’s recommendations are not going to provide an improvement in the way that we handle circumstances and families that come before the court where violence is at issue. I am particularly concerned that a number of issues have not been dealt with at all by the bill or by the committee. Everyone knows of a problem within the system—the length of time that it takes for these matters to be dealt with, the way allegations are investigated, the way we ensure that children’s interests are put first and that families are not at risk if there are circumstances of violence in the family.

I used as an example an issue on which I know the member for Wentworth has expressed disagreement with me. The committee looked at whether or not the definition of family violence should be altered—the existing definition has been there for a long time and is well understood and accepted by almost everybody—to deal with an apprehension of violence. The committee made a recommendation that a reasonable apprehension of violence would be a more appropriate test. As I have explained in my dissenting report, that is something that, superficially, sounds like it would be an improvement. We regard ourselves as reasonable people. We think that the test of reasonableness is a fair one. I know the member for Wentworth has said that he thinks that would be applied by a court in any case. In fact, that is not what happens in the family law area. There is a reason that the test is apprehension of violence rather than whether it is a reasonable apprehension, because it focuses on the fear that a person might have and that fear, whether reasonable or not, is one that can have a very real impact on people.

I express my concerns not to disagree with the committee’s recommendation but to ask that, before the government make a change of this order, we actually get some experts in the field to give us advice about what such a change would mean. I know that the Attorney’s office has now been consulting with people in the community about this and other matters and has received from the Women’s Legal Service some comments about this particular recommendation, and that has been copied to me. But I trust and hope that the government is seeking much broader input on this. This is just one example of my concerns of recommendations which are well intended and sound sensible but have been adopted under a very tight time frame with very little proper advice and could actually have a damaging impact.

In their submission to the committee, the Women’s Legal Service raised a concern that:

The quote continues:

These are very real issues that we have to take account of, and, if we are going to change an existing provision, we need to make sure that it is an improvement, not something that risks actually making the system less sensitive to circumstances of violence. The Women’s Legal Service go on to say:

Obviously the unfortunate reality of our community is that we need to look at making sure that women and children as well as men are safe in their family circumstances. They continue:

I think this is interesting and of course true as a quote:

I put those quotes on the record because I have a number of specific recommendations and concerns that I have raised in the area of violence.

The other issue that I particularly want to focus on is shared parenting. I would like to do this because I think that we talk a lot in this House about how strong communities grow out of strong families, whatever shape or size those families might be. As a society we need to look more closely at how we can support families in the face of social, economic and demographic changes, and this means we need to look at how we can support both intact families and those who have gone through separation. This is the context that I think has been lacking from the debate about shared parenting and the debate on the bill that was the topic of the committee’s report.

The major changes of the past decades—the introduction of no-fault divorce, better support for parents, less stigma being attached to children born out of wedlock, women being permitted to continue to work in the Public Service after marriage and the rise of de facto relationships—came about largely as a result of feminism but also, I think, as the result of a less strict or religious approach to life and a growing tolerance within our community for a range of family ideals and structures. With this has come the increased participation of women in the work force and, although more slowly, the welcome and increased involvement of many more fathers in the care and development of their children. I have a vested interest in this. I am pleased that Michael has embraced wholeheartedly the idea of fatherhood, because in this job the care of our child, Rebecca, would be very much more difficult if he had not.

The Sex Discrimination Commissioner has recently released a paper on the way that men and women share—or do not share—work and family responsibilities within the family. It is interesting that, with all the changes over the decades, the idea of shared parenting is getting currency. It has such a nice ring to it and it is such a positive-sounding idea. The natural reaction is to say that it is a good idea that all parents share the care of their children. But what I think is unfortunate—and I wish we could have a better debate on it—is that the concept is almost only ever raised in the context of family breakdown. It is a concept that has been promoted primarily by fathers who are seeking more involvement with their children after separation. It is a very important area and it is often a very fraught issue for these fathers.

But I think the problem is even bigger. We as a community are not talking enough about shared parenting when families are still intact. We need to start talking about that. We need to start talking about shared parenting not only for those who have separated but perhaps also as a way to avoid separation. We need to look at supports for, and barriers to, shared parenting that go way beyond family law and the Family Court. I have used the recent example of the Industrial Relations Commission, but I think we can look at a whole range of other examples. The Industrial Relations Commission made access to maternity leave, paternity leave and part-time work easier for workers and parents after the birth of a child. This was a great milestone in this debate. We should see these changes and ideas as part of the shared parenting debate and not think of them as being isolated to family law. We need to make more of these ideas and continue to make workplaces and working arrangements more family friendly. We need to be prepared to tackle head-on the barriers that face families when both parents try to work part time or the social impact if a dad takes time off to care for a sick child or even a break from the work force, as women have been doing for so many years.

The member for Wentworth might even take on board the discussion about how family tax benefit works—there are payments if one parent stays home full time, but you cannot get those same benefits if both parents work part time. These sorts of things are part of a much broader debate that we need to have. They are barriers to people making a decision within their relationship that they will share equally or substantially in the care of their children. This issue becomes stark and contentious when we talk about how a family separates. This is where the committee’s report comes in. We were looking at changes to the family law system. Many of the changes are constructive, seeking to make the process of separation less adversarial and trying to make sure that the best interests of the children are put first. I believe, though, that other changes that seek to apply shared parenting to many families where there is very high conflict, and sometimes even violence, are difficult. The trend is that shared parenting is only being discussed as a family law matter and a family breakdown matter, when we should be looking at it as a much broader idea. We would then have a sense of balance in the debate, which inevitably we have not had so far. The bill and the committee’s recommendations do not indicate the broader debate and the balance that we should have in this system.

It is an unsettling trend that the changes focus very much on the rights and demands of non-resident parents, and currently that is mostly the fathers, and leave many of the responsibilities and burdens on the resident parents—in most cases, the mothers. The problem, as I see it, is that we focus on what tests can be applied in family law matters and not on changes which could be brought about more broadly in the community that might have a positive impact on the ability of parents to truly share in the care of their children, even after separation.

It is essential that we get these changes to the family law system right, and to do this we need to hear a whole range of views and opinions from the wider community. What difficulties do people face within the family law system? That is something that we have heard much about through a number of different reports, including the one that has just been presented. But what about other questions that should be asked more broadly in the community such as: what pressures are making it harder for people to maintain a work and family balance? All of these issues impact on the family unit. They impact on the way people participate in the wider community, and for some they have such a devastating impact that they lead to poverty, homelessness and much more.

Unless these wider issues are debated, I fear that the real concept of shared parenting will not develop and will remain a blind spot in the community, let alone in the law. That is why these changes to family law need to encourage parents to put aside their differences in the best interests of their children. I see it as my job as a parliamentarian to help promote this idea more broadly in the community and to make sure that the legislation will help people look at the options of shared parenting.

I hope that, by touching on some of these issues, not just in the parliament but in other forums such as at Lions Clubs and elsewhere we are invited to speak, we might start a much wider conversation in the community about some of the challenges we face in getting truly shared parenting as an idea in the community. (Time expired)