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Thursday, 28 August 2008
Page: 6512


Mr MORRISON (10:49 AM) —I am pleased to have the opportunity to comment on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. This is an important bill. It raises some very important issues about the nature of relationships and families in our community, what happens when they go wrong and our obligations to ensure that those who are vulnerable and dependent in these relationships—that is, children—are protected.

The minister’s second reading speech implies that this bill is predominantly about inequities faced by same-sex couples. I believe something fundamentally more significant is at stake in this bill. It is about recognising and providing a mechanism to deal with the responsibilities of being in a relationship, whatever form that relationship may take. While I appreciate and respect the fact that not all Australians choose to establish relationships in the way I believe is the most ideal way to pursue a committed relationship, which is marriage—a loving marriage relationship is the most secure environment in which to raise a child, and such unions should be forever reserved for opposite-sex relationships; I also believe that every child has the natural and fundamental right to a mother and a father and that our laws should protect this right above any other claims—I also appreciate and respect that Australians will choose to establish relationships in other ways.

There are many different types and forms of relationships in families and we need to ensure that those who live in these relationships—especially children, who are most vulnerable in these relationships—are protected. We must also recognise that all citizens have rights in relation to property that arise from these relationships. Sadly, these rights often only become tested and threatened when these relationships fail. Such rights should be unaffected by distinctions in the nature of these relationships—whether de facto or marriage, same sex or opposite sex. Such distinctions should not compromise anyone’s property rights.

Unlike another bill that recently came before this House, this bill does not seek to lump together for definitional purposes all relationships under one banner. This bill, in definitional terms, preserves the distinction and primacy of marriage in our national laws—and may that be the case for all bills that come before this place. I hope that the approach now being considered in this bill applies to the same-sex relationships bill that is now before the Senate. I also note that action on these issues did not commence with the initiation of this bill. These issues that until now have been the province of the states have been on the table since 1976. It was not until 2002, under the Howard government, that agreement was reached between the states to refer powers to the Commonwealth on these issues. We now have the bill before us, which takes the next step, following enabling legislation in Queensland, Victoria, New South Wales and Tasmania, with the western states still to come on board.

In discussing the bill further, we should note what this bill does not do. The bill does not create for the first time the right for the Family Court to deal with family matters in relation to de facto relationships. This coverage has existed for some time. This bill also does not provide recognition of property rights for same-sex couples in Australia before the courts. I understand that this coverage has also existed in the state courts for a number of years. This bill enables the Family Court to deal with both family and property rights issues, relating to a relationship breakdown, at the same time.

The great leap forward in this bill is not really for same-sex couples. The great leap is to enable the Family Court to better provide for the care of children who are part of a family where the parents are in a de facto relationship and that relationship has failed. As a consequence of this bill, the economic means available to both partners can be put on the table and assessed to see how best they can provide support for the children who are affected. So we have this opportunity now, when matters to do with a relationship breakdown—such as custody of children—are being addressed by the Family Court, to go further and allow the court to deal concurrently with working out how these children are going to be provided for in the future. This is, I think, the true great merit of the intent of this bill. More significantly, in the case of New South Wales and Victoria, it will provide the added benefit of allowing the court to consider future needs—which currently is not possible in the state courts in both of these jurisdictions—as well as past contributions on which the current decisions have been based, to ensure primary caregivers have the resources they need to support the child on a long-term basis.

It is a very sad thing—and, Mr Deputy Speaker, I am sure you and others in this House would agree—that far too many of the issues that come through our offices, as members of this House, are to do with the tragedy of failed relationships. We see it in child support issues. We see it in those who have chosen to walk away from their responsibilities and who have left the primary caregiver in an invidious position. I feel for the primary caregiver in that situation. It is largely women who are in that situation. I have sat with them and listened to their stories and their frustrations. What always touches me is that, despite their own stress and their own sense of loss of both a relationship they once valued and the quality of life they used to enjoy within that relationship, where their heart burns is for the situation their children are now in and the situation their children could have been in had that relationship been able to be sustained and had the person who left that relationship lived up to their responsibilities in providing care.

Now we have a situation, under this bill, where these matters can be addressed concurrently. It will be children who will be the winners, regardless of the relationship they happen to find themselves in. It is not the children who decide to live in a de facto relationship. It is not the children who decide to live in a marriage relationship. It is not the children who decide whether that relationship is working or not working. One of the saddest things you hear from children who have grown up in families that have broken down is that they sometimes feel a horrible sense of guilt or blame themselves. There can never be any guilt or blame placed on a child in those relationships. Relationships are the responsibility of those who are in them, not the children. So I think that the opportunity we have here to ensure that they are protected is a very worthy one. We should do all we can to provide whatever protections we can in this place to preserve the standard of living of these children.

Recent statistics released by the Australian Institute of Family Studies show that people living in cohabiting relationships accounted for 15 per cent of all people living with a partner in 2006. So 15 per cent of all the relationships that are out there are now cohabiting relationships. That is compared to 10 per cent only 10 years earlier. Other studies by the institute also highlight the increased risk to children of relationship breakdown in families where there is a de facto relationship. A recent report showed that between 1975 and 1995—these are the most recent statistics available—on average more than a third, 34 per cent, of people cohabitating separated within five years of commencing. The comparable figure for marriage relationships over the same period is less than eight per cent. That is less than eight per cent compared to 34 per cent. These figures, I think, highlight the fact that cohabiting relationships, clearly, on the numbers, have a greater propensity to break down in the early years. Again, this bill, which provides a mechanism to enable both property and family law issues to be dealt with concurrently in those situations, is urgently needed on the basis of those figures alone.

Of greater concern is the rate of increase of breakdowns for each of these forms of relationship—both marriage and de facto. The rate of breakdown in cohabitation relationships increased from 30.9 per cent between 1975 and 1979 to 38.2 per cent between 1990 and 1994. For marriage it rose from 6.9 per cent to 8.8 per cent over the same period. So both rose, but there was about an eight per cent rise in the breakdown rate of cohabitation relationships in the first five years. These figures highlight starkly the increased fragility of de facto relationships over the marriage alternative. In the same report it is estimated that the number of children born outside marriage increased from around four to six per cent in the early 1960s to one-third in 2006. So one-third of children born today are growing up in relationships based on a de facto arrangement. We therefore have an increasing number of children who are living in families in this type of relationship and, as I have said, whose interests must be protected.

Further to this a survey found that, while it is best to retain the active involvement of both parents in the lives of children post separation, half of separated mothers and fathers indicated their relationships with the child’s other parent was friendly or cooperative—so the other half clearly did not. In a separate report, conducted for the Department of Families, Housing, Community Services and Indigenous Affairs, Parenting and families in Australia, it was found that lone parents were significantly more likely to report a higher number of stressful life events than partners who were in an intact relationship—married or de facto.

The children in these relationships will already face significant emotional and family challenges when these relationships break down, and it is therefore totally appropriate that we take steps as proposed in this bill to provide protection through the concurrent consideration of family and property law issues, and that at the very least we do all we can to ensure that children are at least provided for as a first priority.

This issue, essentially about providing protection at the bottom of the cliff—this is a bottom-of-the-cliff measure in relation to families—is a timely reminder of the urgent need to ensure that we do whatever we can in this place to avoid the situation occurring in the first instance. I am sure all of us would agree, in whatever form we wish to, that family is the bedrock of our community. The Governor-General, soon to depart the post, made this point the other night in the Great Hall. Family is the bedrock of our community. As families fail, whatever form they may take, our society also fails. Every year families come under greater pressure. A key policy focus of every government must be to keep relationships and, in particular, family relationships together.

In research conducted for the report I referred to earlier, half of parents with children under the age of 18 recently surveyed by the Australian Institute of Family Studies believe that is hard for couples to maintain a good relationship in today’s society. The Parenting and families in Australia study shines a light on some of the issues we need to face. The report also looked at the prevalence of life stress events amongst particular groups of people and families and the health of their relationships. The events included financial crisis, uncertainty in relation to employment, problems with police or court appearances, and issues with drugs and alcohol in the home. The report noted that parents who were unemployed were far more likely to report stresses than parents working full time, part time or those classified as not in the labour force. Keeping people in jobs and putting people in jobs is critical to keeping families together.

In this place yesterday the Deputy Leader of the Opposition repeatedly sought an indication from the government about how many job losses were forecast for the next 12 months. We already know from the budget papers that the forecast is for 134,000 job losses in this current financial year. I think we need to stop and reflect on the human toll of those job losses on potentially 134,000 families and on how many others there will be.

Those who work in overseas aid, particularly in the area of microfinance, will tell you that the best thing you can give to anyone in a poor family in a developing country is a job. Once they have a job and the ability to support themselves, they have the ability to support their family and eventually, with enough of them, they have the ability to support their community. While this is so true for working in overseas aid, it is just as true here in our own country. Jobs provide stability for families. They provide a sense of assurance for families. They provide an ability to plan for the future with confidence. There can be no greater thing we can do for families than to ensure the health and strength of this economy and to ensure that unemployment is low and that job growth is high. It is absolutely disturbing for families in this country that there are at least 134,000 forecast job losses—and that is one budget forecast that is dead on track. So keeping people in jobs and putting people in jobs is critical to keeping families together.

The study also finds strong linkages between the prevalence of these life stress events that I referred to earlier and psychological distress, with greater concentration amongst those with socioeconomic disadvantage as well as those with inadequate support structures—and I highlight this—to share the burdens of raising a family, either through extended family, within the relationships or otherwise throughout the community. Other issues included support in terms of access to information, to counselling and to opportunities to learn how to be better parents. Of greatest significance was the impact of all of these issues on the quality of parenting and how, in turn, a lack of such quality impacts negatively on the development of the child. All of these issues are significant—the ability to keep relationships together and, particularly, the responsibility of those in relationships to be good parents. I am sure we would all like to believe that all parents would like to be good parents, but not all of us are faced with the same challenges that others are in trying to be good parents. I think we should be mindful of that as we consider all sorts of measures.

While providing protection in this bill for when it all goes wrong, let us redouble our efforts in this place to help couples and families make it all go right, as far as families and relationships are concerned. One of the virtues of this bill is that it will make people, I believe, enter into a relationship, particularly a de facto relationship, more cognisant of the responsibilities to each other in forming such a relationship. One of the great virtues of marriage is that it requires a real and public commitment. I believe such commitment is essential to providing the stable environment that every child needs and deserves. For those who choose not to form a marriage relationship, I believe these measures will actually raise the bar. This can only serve to give these relationships a better chance and, in the event that they involve children, protect these children from having to go through the pain of family breakdown.

Relationships involving living together should not be a casual consideration. The only issue I raise in relation to this bill is the potential for the consequence—I would hope unintended—where a person is at the same time in both a marriage and what could be deemed a de facto relationship by the courts under this measure. This ‘Brothers and Sisters scenario’—for those of you who watch Channel 7—could in fact enable what is basically a polygamous relationship and a recognition of a series of polygamous relationships to exist. I know this is something my colleagues will touch on. I understand the Senate report on this matter today has highlighted some changes, and I must say I am not sure those changes go far enough.

In this case, I would like to be assured by the Attorney-General that the married partner could not in any way have their primary claim over property rights diminished by the presence of any other relationship, de facto or otherwise. We cannot endorse a situation of infidelity in polygamous relationships which results in the diminishing of rights of people in the primary marriage relationship. That is a fairly fundamental principle that I would hope this House and the Senate would support. I do not believe that this is the intent of this bill; I believe it is an unintended consequence of this bill and I think it urgently requires some clarification. I would also wish to be assured that the bill would in no way provide any precedent in relation to adoption rights through any form of tacit recognition of parenting rights for people with no biological relationship to a child in a same-sex relationship. A child, as I said, has the fundamental right to a mother and a father, and this right must always come first before all others. There is also the question of interdependent relationships, which I understand cannot be dealt with in the context of this bill or family law; nevertheless, it raises issues about how their property rights are impacted when longstanding interdependent relationships are terminated.

The bill provides a positive step forward and is a reminder of the need to ensure that we do what we can to avoid the mess that this bill is designed only to clean up. The health of our relationships is a barometer for the health of our society. We must value them, protect them and esteem them, so as not to enter into them lightly. And when we do enter into them, we must live up to our commitments and strive to create a greater environment for each other and especially for the children that become part of that relationship. This is easier said than done for all of us. It often feels like an unattainable goal; I am sure we would all agree. For all of our faults as human beings, probably the hardest to overcome is selfishness. It is often selfishness that gets in the way of all of our relationships.

As we consider this bill, I urgently ask the government to consider the matter I have raised in relation to the potential for this bill to give rise to polygamous relationships, and I ask them to address their attention to that and provide an absolute guarantee before the bill leaves this House. But I also commend the opportunity to move forward to protect children in relationships, however they may be formed.