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Tuesday, 26 May 1987
Page: 3317


Mr SPENDER(3.56) —I move:

That the Bill be now read a second time.

The purposes of the Family Law Amendment Bill 1987 are to amend the Family Law Act so as to reinforce the principle that parents, not the taxpayer, bear the prime responsibility for the maintenance of their children. As we all know, the Family Law Act brought in sweeping changes to the laws of divorce and to the attendant rules which deal with the questions of custody and maintenance. Fault in the breakdown of a marriage became irrelevant and I think that is quite right. The only issue for the purposes of dissolution of a marriage by a decree of the court for divorce is irretrievable breakdown.

Since the Family Law Act was enacted, society has become accustomed to high levels of marriage breakdown. Perhaps those levels were inevitable. Around 35 per cent of marriages end in divorce and for many, marriages are simply a contract. After 12 years of experience with the Family Law Act, I believe it is time to re-examine that Act, how it operates, its effect on our society and whether we can do better. It may be that it is too easy to get married. It may also be that divorce is too easy and that some sort of cooling off procedure should apply both to marriage and to divorce. Every day we see evidence of the truth of the old maxim: `Marry in haste, repent at leisure'. Certainly, for a society that treats marriage and the family unit as its foundation stone, the rate of breakdown of marriage, with all the associated misery, is all too high. Just as many treat the institution of marriage casually, so do many treat responsibilities for maintenance of their children and former spouses with equal casualness. Those who suffer are the children, the custodial parent-almost invariably the mother-and the taxpayer. The majority of custodial parents either receive no maintenance at all, or what they get is manifestly inadequate so that many live in poverty and suffering from which they cannot escape. There is an overwhelming need to address this problem and the defects to the maintenance system under the Family Law Act.

The Bill before the House was presented to the Senate by Senator Durack in 1985. It reflects his real concern that parents should meet their responsibilities to their children and that the taxpayer and the social security system should be called to help only when the financial resources of the parents are inadequate. At present, in considering what maintenance the parties to a marriage should be ordered to pay, the court is required to consider the eligibility of either party for social security benefits. This means that responsibility to support children can be shifted from the parents to the taxpayer. That is not acceptable. Parents should bear the prime responsibility for the maintenance and well-being of their children. Manipulation of the social security system should be stopped. The cost of maintenance of children or of custodial parents should be borne by the taxpayer only in cases where hardship and justice so require. As a matter of history, at the time that the Family Law Act was brought into force, the Government of the day had recently introduced the supporting parent's benefit. Since that time, there has been an astronomic rise in the cost of that benefit to the Australian taxpayer-from $40.6m in 1974 to $1,238m in 1986.

There is a great deal of evidence to establish, and a wide recognition of the fact, that there is a close relationship between social security outlays for parents with custody of children whose marriages have broken down and the practices under the Family Law Act for dealing with maintenance questions. Although there is good justification for a court to have regard to a social security benefit available to either party where, for example, both parties are of low income or one party has no income and the other has either a low or moderate income, there can be no justification for a court taking into account the existence of such a benefit in the case of parents who can afford to pay for the maintenance of their children. Unfortunately, that seems to happen all too often, and it is not restricted to low income cases.

The problems of settling maintenance orders are exacerbated in many family law cases by the assumption by one or both parties to a marriage or other responsibilities of a family nature-for example, a new marriage and more children to support, either children of the new spouse or of the new marriage. At present, in cases where a former spouse is cohabiting with another person, the court is required to have regard to the financial circumstances relating to that cohabitation. In practice, a parent who has remarried, and who otherwise would be liable to pay an adequate and, perhaps, substantial sum for the maintenance of his children-and, indeed, of his former spouse-may pay far less because of the assumption of new obligations. These are complex questions because one is dealing with how to divide a limited amount of money between various fundamental obligations-for example, children of the first marriage and children of the later marriage. It would be a great help if some sort of priority system could be given as a guide-subject, of course, to the general directive to the court under the Act to take into account any fact or circumstance which, in the opinion of the court, the justice of the case so requires.

The Bill proposes three specific changes to the law. First, it amends section 75 of the Family Law Act, which sets out the considerations that the court must take into account when fixing maintenance. As I have indicated, those considerations include the eligibility of either party for a pension, allowance or benefit under any Commonwealth law. The first amendment adds a further sub-section to section 75, which, in the words of Senator Durack:

. . . prevents the court taking into account the eligibility of a party of a marriage who is claiming maintenance for any benefit under the Social Security Act or the Repatriation Act. It is necessary to go further than simply deleting the present requirement that the court `shall' take into account such eligibility because the court may well decide to do so of its own volition in the absence of a clear signal from the Parliament in the terms of this amendment. This should not result in any injustice to a person who is on a low income and being sued for maintenance by a former spouse who is in fact receiving a social security benefit because other provisions in sections 72 and 75 make it clear that the court must have regard to the relative financial circumstances of the parties.

Section 75 is further amended by, again in the words of Senator Durack, making:

It is clear that the court in determining the amount of maintenance to be paid shall give priority to the needs of the party or children for which provision is claimed in accordance with the sequence of time when those responsibilities were attained. This is based upon the view that the acquisition of responsibilities for children during a marriage should take precedence over the acquisition of subsequent responsibilities acquired by either a subsequent marriage or a subsequent de facto relationship. That does not mean that maintenance should not be paid for such subsequent obligations but simply provides a means by which the court can determine the priority. Any injustice which in the particular circumstances of a case may seem to arise from these new sub-sections can be rectified by the general directive to the court to take into account any fact or circumstance which the justice of the case requires.

Thirdly, the Bill seeks to amend section 87 by inserting a new sub-section. Section 87 deals with agreements between the parties with respect to maintenance that can be approved by the court. Such an agreement may provide that it is to operate in substitution for any rights of the parties under the Act. Thus, where an agreement makes such provision and is approved by the court, the parties are prevented, except in extreme circumstances, from going back to the court to seek to vary maintenance obligations. The proposed new sub-section prohibits such agreements from dealing with the rights of a party in respect of the maintenance of a child of the marriage. Thus, maintenance obligations in respect of children of the marriage are to be dealt with in accordance with the rights and obligations set out in the Act. That will prevent parties from entering agreements that limit the right to obtain proper maintenance for a child by a responsible parent. The eventual cost savings of those measures will be significant.

I wish to say a few words about maintenance collection. Senator Durack, in his second reading speech in 1985, made it clear that the amendments he proposed to the Family Law Act were not to be regarded as the be all and end all solution. Of course they are not, they are simply proposals to improve the way in which the Act operates. He urged the Government to change its policy of not enforcing recipients of supporting parents' benefits to take reasonable steps to enforce their right to maintenance under the Family Law Act. I second that sentiment. Senator Durack also said that the Government should be giving urgent attention to the problem of maintenance collection. Then-in 1985-as now, it was obvious that the legislation did not provide adequate machinery to enforce maintenance orders and that a vast proportion of orders were, in fact, either ignored completely or complied with only partly. That has obvious consequences for the well-being of the children involved and for the many many women who, after marriage breakdown, are the sole parents who must support those children.

Since December 1985, we have seen a discussion paper on child maintenance prepared for the Government by Dr Meredith Edwards and also the Government response delivered in this House by the Minister for Social Security (Mr Howe) on 24 March 1987. Speaking about the Government's proposal to implement maintenance reform, the Minister said:

Stage 1 in 1987 will introduce legislation to establish the child support agency to collect child maintenance, and to amend the Family Law Act to assert the priority of child maintenance, to make sure that court orders put the financial position of children ahead of everything except the essential commitments of the parents, and to remove reference to social security eligibility to make clear that child support should not be treated as a `top-up' to social security pensions and benefits. The current system has for too long awarded inadequate levels of child support. The Social security system has been burdened with this responsibility.

I agree with what the Minister said, but the very purposes of the amendments introduced by Senator Durack, which were opposed by the Government in the Senate, were to meet the problems to which the Minister referred. In short, the Opposition is providing the Government with legislation in accordance with its policy.

It is a great pity that the Government has been so dilatory in dealing with this problem and in introducing legislation. Indeed, we have yet to see the legislation. The plight of women and children is often extreme. They find themselves in poverty traps from which they cannot escape. The day to day grind of their lives is very great. The tension is considerable. Much can be done to alleviate these problems if we have a better system for determining what levels of maintenance should be paid and for making sure that maintenance which has been ordered to be paid is in fact paid.

If the Government had good sense it would support the changes that we propose to the laws. It is, I suppose, a matter of pride to the Government that it should not do so for the simple reason that the proposals do not come from the Government's side, even though they are directed to dealing with precisely the kinds of problems that the Minister for Social Security has identified. I commend the Bill to the House.


Mr DEPUTY SPEAKER (Mr Blanchard) —Order! Is the motion seconded?


Mr Ruddock —Yes. I second the motion and reserve my right to speak.

Debate (on motion by Mr Ruddock) adjourned.