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Thursday, 26 March 1987
Page: 1412


Senator MACKLIN(5.10) —We are dealing this afternoon with the Family Law Amendment Bill 1985, a private member's Bill introduced by Senator Durack in December 1985. This Bill was debated fairly extensively in February last year when there were many speakers on it. As an amendment to the Family Law Act, this Bill deals with one of the intractable areas of law in Australia. In recent years we have seen very graphic illustrations, particularly relating to judges in the Family Court, of the major problems with which the Family Law Act has to deal and the enormous amounts of tension, disharmony and hatred, finally leading to murder, that have arisen out of problems associated with this area of the law. Hence, it is with some trepidation that we look at any amendment to the Family Law Act. We must try to think of the ramifications that may flow from an amendment such as the one in Senator Durack's Bill.

As other speakers have indicated, Senator Durack has circulated a number of proposed amendments to be moved at the Committee stage of this Bill. These amendments essentially deal with the elimination of a section that would require imprisonment for non-custodial parents who default on child maintenance payments to custodial parents. I am pleased to see that Senator Durack has withdrawn that aspect of this Bill because it seems to me that it merely adds to, rather than detracts from the area of tension and the likely ramifications that could occur at later stages.


Senator Durack —That was the burr under the saddle that your colleague identified.


Senator MACKLIN —The burr under the saddle seems to have worked not only on other people, but also on the honourable senator himself. I am glad to see that that burr has been removed. The essential guts of this Bill are contained in clause 3 (2). In his second reading speech, Senator Durack was candid to the point of saying that unfortunately these amendments on their own would not be entirely effective. Indeed, that would probably be accepted by everybody. That is one of the difficulties that I have with this Bill-the fact that the amendments on their own will not be entirely effective. I am not at all sure that piecemeal amendments to the Family Law Act are required at the moment.

Certainly, the representations that are made to me and, I am sure, to Senator Durack and other honourable senators, are for far more extensive amendments to that Act. Those representations tend to come from two quite diverse areas. In the main, they come from women who usually have the task of raising the children of those marriages that have been dissolved. The other major set of representations come from men, by and large the non-custodial parents, who wish, as Senator Zakharov has said, to link custody with maintenance. I agree entirely with her that those are two quite separate and distinct issues which should not be linked.

The reason I see them as separate and distinct is that the maintenance provided by the non-custodial parent is provided for the children. Quite frankly, in terms of the children's welfare, the question of whether there is access is immaterial. The children still have to be fed, clothed, housed and educated. Of course one would hope that both parents would abide by the Court's determination. One would hope that those parents who have not engaged in any maintenance of children would abide by the determination and that the custodial parent would provide access. But trading one for the other is almost getting down to the operation of a horse market.

While I receive a large number of representations along these lines, I have not been able to evince any support or any sympathy for that type of proposition. I sympathise greatly with those who are denied access which is provided by the courts, but I do not sympathise with those who would seek to deny their children the maintenance which is their due because the parents are being denied access. In this most difficult of areas of law the Court is trying to make a judgment which is in the best interests of the children. When we look at amendments to this Act, such as the one contained in this Bill, we must take a stance for the interests of the children. That may seem harsh in many ways as parents suffer greatly in these circumstances, but as there is often a conflict of interest, one must ask to whom one will give priority. Under our system of law we tend to give priority to those who are least able to look after themselves. The law tends to protect those people against those who are able to look after themselves. I am not saying that in every circumstance either one or other of the custodial or non-custodial parents is correct in either denying or permitting access, but I know that that causes enormous concern, particularly to the largely male non-custodial parents who come to see me.

Among members of the other group-that is, basically the female custodial parents; and it is interesting that that pattern still persists although it seems to be shifting a bit according to the statistics-the concern is totally different. In this case the concern is about the enormous difficulty of actually enforcing maintenance law. By and large in most cases-not all, but most-there has been a fair amount of acrimony upon the break-up of the marriage, particularly where there has been a court-enforced judgment and that judgment is often seen as unjust by one partner or the other, and sometimes by both. The partner who sees the Court judgment as being unjust is often not in the mood to abide by it. Indeed, in 30 per cent of the cases, as we know from the research of the Institute of Family Studies, that partner never attempts to fulfil one iota of the judgment. That is an extraordinary figure when one thinks about it.

I urge some caution in respect of the figures brought out by the Institute of Family Studies, particularly because the data base it has used extends over many years. It goes way beyond 1983 and well back into the early Fraser years. It must do so as one sees when one looks at the nature of the conclusions being drawn. One must have a reasonable time over which to work out the numbers who have defaulted after a period of years. For example, one cannot have a figure for the number of people who have defaulted after five years if the study has not run for five years. That means that the data we are talking about did not arise under this Government, nor, I suggest, did it arise under the previous Government.

Indeed, we are talking about behaviour which, for one reason or another, has grown out of the changing social context. We would expect an increase. The reason for that is obvious and is found in other studies on the breakup of marriages. In particular, we would expect it to increase in terms of the very large number of those first marriages which break up and which result in second marriages, often with children. I say that the second group is likely to grow because in tight economic circumstances where a person has a second family to care for, support for the first family often becomes very problematic. That is an understandable human reaction. I will not sit in judgment on people in those circumstances because obviously everyone is different.


Senator Durack —What about the obligation on them?


Senator MACKLIN —If Senator Durack listens, he might learn something. In those circumstances, people are attempting to provide for those who are closest to them at any particular time. I would suggest that that is a human reaction. That does not necessarily mean that we condone or support such action. What I am trying to do is interpret the type of figures that we are confronted with in terms of the studies. It is not good enough simply to read the figures themselves. We have to read the data behind them to try to work out what we might wish to do about it. Senator Durack has made one suggestion, based upon an interpretation of those figures, of where we might go. I am suggesting that the type of human reaction we are confronting is not going to go away-it is not going to go away regardless of what type of law we pass. We are confronted with that reality.

I agree with Senator Zakharov's sentiments, doubtless the result of her work, to which she alluded, that there is an education task for the entire community and not just for the schools. God help us, every time we have a suggestion about what needs to be done, the schools somehow get dragged into it. We have the task of educating society to the view that the offspring of any family is the responsibility of both parents and that that responsibility continues while that child remains a minor. Let us assume that a person who has two children from his first marriage goes into a second marriage where he also has two children. There are plenty of first marriages which result in four children. But one still has to support those children whether they are in the first marriage or the second marriage.

My view, very clearly, is that it is no longer possible for us to take the view that the general taxpayer should support the children of first marriages, regardless of what the parent is doing in the second marriage and regardless of what his responsibilities and financial obligations are. However, there is obviously no way of dealing with this matter except on an individual basis. I do not see any way of dealing with this matter except ultimately through a court determination which is able to take all items into consideration. I express again, as an aside to that point, my strong support for the Family Court of Australia and I hope that it continues. However, I must admit that I am disturbed about the current discussions that seem to be emanating from the Attorney-General's Department about the possible collapse of the Family Court into other jurisdictions or court structures. I believe that the Family Court, as it is presently constituted, with a number of amendments, really ought to continue to carry out its present task. I can see that there are problems in terms of judges and so on, but that basically would be my view.

We need to look at how best to secure reasonable support for the children of a marriage which has been dissolved. Senator Durack's suggestion basically boils down to a proposition that a court in making a determination should disregard the possible effects of social security payments at any later stage and base its judgment by and large on the economic capacity of the individuals who come before it. I must admit that I am attracted to that proposition. It seems to me somewhat anomalous that when one is seeking to determine the possible contributions that an individual might be able to make one can say: `In lieu of the contributions that one might be able to make, there is a social security net that will pick up those types of problems if in fact there is a defaulting'. So probably I would ultimately find myself in support of the principle that Senator Durack has enunciated. However, I am not at all sure that supporting the amendment will achieve very much. I am rather inclined to support the suggestions in Senator Durack's second reading speech where he says that amendments will not be entirely effective. Senator Durack says that they will not be entirely effective because the Government needs to look at the whole area. As we have heard from Government senators, the Government is looking at the area. Senator Durack went on to say in his second reading speech:

None of these matters can be properly addressed by a private member's Bill but it is my earnest hope that the passage of this Bill by the Parliament will prove a catalyst towards solving a problem of growing magnitude towards which the present Government has adopted a thoroughly cavalier attitude.

In other words, the Bill, which was introduced in 1985 and debated in February 1986, provides a catalyst to the problem that could not be solved by a private member's Bill. This is the reason why Senator Durack introduced the Bill himself. I would have thought that, as a result of that type of proposition, this debate was somewhat out of place. The Government has started to move. However, it has not necessarily moved in the areas I would like or in the areas that my Party would like, which it has foreshadowed for a number of years. Basically, our propositions relate to the use of the Australian Taxation Office and the Department of Social Security as the two major departments operating in the area. We believe that the Taxation Office is the mechanism best able to keep track of any Australians, whether they change their name or not, whether they stay in the same State or not. The collection of maintenance under any order provided by the courts ought to be carried out as a matter of course. There are avenues under the Family Law Act for review of any such maintenance orders, so that when in fact circumstances change some of those orders are automatically reviewed or a review can be sought. There is no possibility that the person who is having a particular maintenance order enforced would necessarily feel more disadvantaged than he already feels by the initial declaration of the court. I believe that that is ultimately the best way to go. Since the Department of Social Security is the department which is currently paying out, it would be the appropriate department to continue that type of support mechanism to the custodial parent for the benefit of the children.

The reason that I feel this matter should be handled somewhat at arm's length from the people who are involved, is that I have met many people in my electorate office who have had the most terrifying experiences when it comes merely to attempting to enforce maintenance. I really cannot bring myself to support a system which would continue that imposition on the custodial parent. Women have in fact suffered almost terrorism at the hands of their previous partner when they have sought to get the money which the court had said ought to be given for the maintenance of the children involved. I believe that a more neutral system needs to be devised. The Government is moving slowly. I suppose that while one might be critical, as Senator Durack has been, of the almost snail's pace at which this particular item has been going in the last few years, I am also mindful that the area is one into which one steps with a great deal of trepidation. For every solution that one poses, there is ultimately a very large body of people on the doorstep to suggest why one should do something quite the opposite.

I imagine that a government, which has to respond to an electorate, would find itself in some difficulties in this area. Nevertheless, I believe there is now fairly wide community consensus that both parents have a responsibility for the upkeep of the children of a marriage, and that where we have a court determination that court determination should be carried out. That being the case, I would reiterate the point that Senator Haines made when she spoke on 13 February:

. . . the Bill seeks to prevent court-approved maintenance agreements being used as a mechanism to evade the obligation to pay maintenance . . .

We would believe that, in general, the point that Senator Durack has made in that one item is well taken. But it is one item which, sitting on its own, I do not feel would necessarily contribute all that much to what is needed to be done in the general area of maintenance enforcement. Likewise, if a non-custodial parent is responsible for a second family, something which I talked about earlier, that is actually taken into account with regard to that person's possibilities of payment. This is a much more difficult problem, but I have already expressed some views which I think would suggest that I might lean to the point that ultimately the person has a responsibility for all of those children and that the children of the first marriage should not be expected to suffer because of a subsequent decision made by the parents, and certainly that the taxpayer should not be expected to pick up the tab for something that that person decides that he or she does not want to do any longer. It is one of the obligations of the marriage contract, where that marriage produces children, that a person actually undertake that responsibility.

I find myself in support of a number of things that Senator Zakharov said, including the point she made that that actually has other ramifications in terms of what we ought to do to make sure that when people have children they have those children voluntarily and that they know what they are doing. In other words, it does suggest that those people who, for example, in my State say that we should not have any sex education for kids are in fact contributing directly to the problems that we are having in the Family Court area. They are the very people who wander around wringing their hands and waving their placards and saying: `How dare these people get support for their kids'. They cannot have it both ways, and to blame the victims, as it were, the children, whether they be from a marriage, from a de facto situation, or from a single parent family as a result of a death or separation or the fact that there was never any other parent in the set-up, other than in terms of the conception of the children, seems to me to be a hypocrisy that ought to be exposed on every possible occasion.

There are further ramifications of this. There are other areas that have to be considered and taken into account. I would suggest that those other areas have equal importance with the type of proposition that Senator Durack has raised. They have importance because this situation ultimately will be solved only if enforcement of those maintenance orders is done in some arm's length way. With the enforcement of those orders, the proposition as to what the court may or may not take into consideration will cease to be of major concern. What will be of major concern is not whether the person is in fact able to have a social security payment but what are the financial resources that are available to that person that can be adequately taken and used in the support of children. That ultimately is the question, and how we arrange that is something that I hope will not become too polarised in a party political sense. I know that these matters are grist for the political mill. I am not so naive as to suggest otherwise.

I think everybody in this chamber is already aware of the difficulty of dealing with this area. I think we should be very careful not to contribute to those difficulties by trying to score brownie points, one against the other on these issues, because ultimately it is the taxpayer who is footing the bill. The arrangements that we are going to have to come to are ones whereby the responsible parents have to foot the bill. I do not want that to be taken to mean that I do not support the continuation of payments to anybody who in fact is not currently being supported by the non-custodial parent-I do. I support those payments in the whole range of areas where they are currently being paid, whether they be to single mothers or not. The reason I support those is, very clearly, that I believe that anything else is simply an attempt to blame the victim. What we are attempting to do in this debate, and hopefully in other debates which we will have on this matter, is to see how best the children can be supported and protected. The fact that those children are the children of a single mother seems to me to be neither here nor there. Those children still have to be looked after, and if there are no other mechanisms by which they are able to be looked after, it is undoubtedly the responsibility of the taxpayer to make sure that they are cared for.

I do not want any of the remarks that I have made today about the need for parents to bear that responsibility to be taken to mean that I do not favour the continuation of the support which is currently given until such time as we can have a better mechanism in place which takes resources from those who are able to pay and provides those by a sensible mechanism to children of a particular marriage that has been dissolved.