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Wednesday, 13 August 2003
Page: 18476


Mr McCLELLAND (9:59 AM) —I rise to speak on the Family Law Amendment Bill 2003. It is an omnibus bill which makes a number of amendments to the Family Law Act 1975 dealing with parenting plans, the conduct of proceedings in the Family Court and the management of the court, the parenting compliance regime, financial arrangements, orders binding third parties, the costs of child representatives and the protection of children from abuse. In the main, the opposition supports the measures contained in the bill, subject to two matters that have been highlighted in the course of the inquiry by the Senate Legal and Constitutional Legislation Committee into this bill.

Schedule 1, which provides that parenting plans can no longer be registered, will remove the possibility of registering a parenting plan with the Family Court or the Federal Magistrates Court. Parenting plans were introduced by the Family Law Reform Act 1995. Once registered, the child welfare provisions in the plan are enforceable. Child welfare provisions are those dealing with the persons with whom a child is to live, contact between a child and other persons, and any other aspect of parental responsibility for a child except child maintenance or support. Parenting plans replace child agreements in the Family Law Act. The key difference between the two is that the child agreements could by rights be registered by parents, with no judicial scrutiny, whereas parenting plans can only be registered if sanctioned by the Family Court after the parents have provided detailed information and a certificate by a lawyer or a family or child counsellor. Parenting plans were designed to promote a cooperative approach to parenting after separation and to overcome a tendency by some parents to think of themselves as winners or losers in the custody battle.

In 1997 the Family Law Council and National Alternative Dispute Resolution Advisory Council recommended that the 1995 provisions governing registration of parenting plans be repealed. I understand that the Attorney-General was then of the view that they should remain in place until a general review was conducted of the 1995 amendments. In 2000 the councils repeated their advice, which was ultimately accepted by the Attorney-General. The recommendations of the councils were based on the following considerations: registered parenting plans are inflexible and can only be varied by registering a new agreement revoking the old one; the process for registering parenting plans is cumbersome and expensive; it has proved confusing to make some parts of a parenting plan legally binding while others remain legally non-binding; family lawyers have made minimal use of parenting plans and instead have sought consent orders to achieve the same outcome; and, finally, the alternative to seeking consent orders should be simpler, clearer and more flexible. Following these amendments, the Family Law Act would continue to encourage the use of parenting plans as informal, legally non-binding agreements.

Several groups have expressed concerns to the Senate committee about these amendments. In essence they are worried that the bill would deprive families of a simple alternative to seeking court orders and that the absence of scrutiny would increase the risk of parents entering unworkable plans. The opposition acknowledge these concerns, but on balance we are satisfied that these amendments are appropriate, having been recommended by those expert councils. The evidence suggests that the parenting plan provisions did not operate as they were originally intended. The Family Law Act will continue to encourage the use of parenting plans as an informal mechanism, and parents will be able to continue to seek consent orders to create enforceable obligations. So the concept will still exist but with those technicalities absent.

In respect of schedules 2 and 3 of the bill, we note that they concern the conduct of proceedings in the Family Court and the management of the court, and they are supported by the opposition. Schedule 2 would amend the Family Law Act to put beyond doubt the capacity of the Family Court to use electronic technology, including video and audio links, and would also allow judges to sit in separate places but still be part of the one court—in other words, a split court, which has the potential to facilitate delivery of justice to remote regions and to reduce costs. Schedule 3 would amend the act to reflect changes to the management structure of the Family Court—in particular, the creation of new positions such as manager mediation and a clearer delineation between the administrative functions of registry managers and the legal and judicial functions of registrars.

While these amendments are uncontroversial, it is appropriate to observe that there has been a further run-down of the capacity of the Family Court directly as a result of the fact that the Attorney-General has not reappointed judges in Adelaide and Melbourne. The pressure on these Family Court registries is apparent from figures provided through Senate estimates which indicate that, while the Family Court nationally manages to finalise 75 per cent of matters within just over 20 months, in Melbourne it is 22 months and in Adelaide it is more than 26 months. The Attorney-General's decision, coming on top of the cuts to the Family Court in the previous years, does nothing to improve the position of separating families waiting in the Adelaide and Melbourne Family Court registries, with the children of separating parents all too often being the victims of that increased delay.

Schedule 4 of the bill would make minor changes to the three-stage regime for the enforcement of parenting orders introduced by the Family Law Amendment Bill 2000, which came into effect on 27 December of that year. We acknowledge that the changes are essentially designed to provide the court with greater flexibility to manage the compliance regime, and they are supported by the opposition. For example, the court would be empowered to order that a person attend a post-separation parenting program at any stage during the proceedings for a parenting order, rather than simply after an alleged breach of a parenting order.The court would also be empowered to order that a person attend a post-separation parenting program provider for an assessment as to the person's suitability to attend a program, and this assessment can take effect as an order of the court directing the person to attend the program. This relieves the court of the function of ordering that a person attend a particular program—a function we understand has been difficult to discharge in practice, given the need to maintain an up-to-date and meaningful list of all programs offered by different providers. In summary, it adds appropriate flexibility to those procedures.

The bill also confers power on the court to make additional orders at various stages of the enforcement regime, including a further parenting order that compensates for residence forgone because of a contravention of an earlier order; an order varying the order alleged to have been contravened—for example, where a person is able to establish that it was unreasonable or even impossible to comply with the original order; and an order imposing a different penalty if a person contravenes a community service order. The bill also clarifies that the enforcement regime applies only to orders and undertakings on parenting matters, not those that relate solely to financial matters, and that it only applies where no other court has dealt or is dealing with a contravention of a particular order—in substance, where a rule of double jeopardy exists.

While those provisions may appear harsh in terms of the impact on citizens who are directed to attend these programs or to comply with these orders, we note that the emotional and controversial issue of access to children often creates very dramatic disputes, with the children being the victims of those disputes. We believe it is appropriate for the court to supervise this hands-on approach to try and assist those couples who are having difficulty achieving an effective relationship to achieve at least arrangements that are in the best interests of the children.

Schedule 5 makes two changes to the regime for binding financial agreements also introduced by the Family Law Amendment Act 2000. The opposition supported this regime, with amendments recommended by a Senate committee and accepted by the government. Labor's approach was to ensure that the institutionally weaker party—often the woman—is not disadvantaged by a binding financial agreement. The first change is that the court would be empowered to make a maintenance order that overrides the effect of a financial agreement if the circumstance of a party at the time the financial agreement came into effect rendered them dependent on government income support. Currently, this power refers to the circumstances of the party at the time the financial agreement was made. The change makes logical sense as the court, when considering whether to make the maintenance order, will be more concerned with the circumstances of the party during the period the financial agreement has effect.

I acknowledge the concerns expressed to the Senate committee that this change would apply to existing as well as future financial agreements. However, in the circumstances, we accept that this is appropriate and will benefit disadvantaged parties who have found themselves relying on government income support as a result of inadequate provision for maintenance in a financial agreement.

The second change contained in schedule 5 is that a financial agreement will be binding if each party has been provided with independent legal advice on `the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement'. This requirement replaces the existing requirement to be provided with advice from a legal practitioner on several complicated grounds, including `whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement', `whether or not, at that time, it was prudent for that party to make the agreement' and `whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable'. You can see the complexity in that language.

We understand that the change responds to concerns expressed by the legal profession that it was being required to provide financial advice based on uncertain future matters. We agree it is undesirable that legal practitioners be mandated to provide such financial advice, which can give parties a false sense of security in circumstances where the advice may not be soundly based as a result of those unforeseen circumstances. So, in summary, this amendment is also supported.

Schedule 6 deals with orders and injunctions binding third parties. We note that the court could do so either when making orders altering property interests as part of a property settlement or when exercising its more general power to issue orders or injunctions relating to the protection of parties to a marriage. `Third parties' is defined broadly and would include friends or relatives of the parties to the marriage, business and financial institutions. Marriage is also defined broadly to include void and dissolved marriages. The provisions would not apply to marriages where there is a current order or financial agreement relating to the property of the marriage.

The types of orders the court could make as part of a property settlement would include an order directed to a creditor of a party or both parties to the marriage varying the liability for the debt by either substituting one party for another or varying the proportionate liability of each party, or an order directed to a company or a director of a company to register a transfer of shares from one party of a marriage to the other. The types of orders the court could make in exercise of its more general powers would include an order restraining a person from repossessing property of a party to a marriage or restraining a person from commencing legal proceedings against a party to a marriage. The court could only make such an order, however, if it is reasonably necessary, reasonably appropriate or adapted to effect a division of property and only after the third party has been afforded procedural fairness. If the order concerned a debt, the court would have to be satisfied that the order would not result in nonpayment of that debt. Third parties would be provided with an immunity against loss or damage because of acts done in good faith in reliance on such an order. An order would prevail over any contrary obligation in any other law or legal instrument. This being federal law, it would of course override any state legislation to the contrary.

These amendments would significantly expand the powers of the Family Court and the Federal Magistrates Court to effect a division of property and protect parties to a marriage. This expansion of powers is counterbalanced by measures to protect the substantive and procedural rights of third parties and, on this basis, Labor supports these amendments as being appropriate. However, it again became clear during the Senate committee inquiry that the government's consultations on these measures may have been less than entirely adequate, and some further work may be required to ensure that any consequential amendments that may be required are in place before this regime of making orders against third parties is put in place.

For this reason we believe it would be appropriate to postpone the commencement of these provisions for a specified period to enable this further work to be carried out. We understand that this was an option canvassed before the Senate committee, and we look forward to the government's response to those concerns when the bill is debated in the Senate. This is the first of the two matters I adverted to at the start of my speech as being of some concern to the opposition.

Schedule 7, which deals with miscellaneous amendments, contains a number of amendments. I will restrict my comments to two issues. The first is that of child protection. Currently the Family Law Act makes inadmissible in court anything said by a party during family and child counselling or mediation, conferences with family and child counsellors or welfare officers and post-separation parenting programs. The public policy behind that confidentiality is, of course, to try to encourage frankness and openness in those discussions.

Schedule 7 would create an exception to this rule and allow as evidence an admission or disclosure of an adult or a child that indicates a child has been abused or is at risk of abuse. Under the exception, the evidence would be admissible unless the court were satisfied that sufficient evidence of the admission or disclosure were available from other sources. The exception would not apply to disclosures by an adult of abuse by another person, nor to disclosures by a child of abuse from another child. These amendments were recommended by the Family Law Council in its September 2002 report titled Family law and child protection. The amendments seek to balance the traditional public interest in the confidentiality of family counselling and mediation with heightened community concern to ensure that children are protected against abuse.

While we acknowledge those legitimate policy considerations to the effect that matters canvassed in mediation conferences should not be brought into evidence, the opposition believe that the interests of children must be paramount. On that basis, the opposition welcome and support these changes. I also welcome the fact that the Standing Committee of Attorneys-General has established a working group to consider other recommendations of the Family Law Council designed to enable separating families to have all their family law and child protection issues dealt with in the one court. We frequently refer to the constitutional issue of the separate rail gauges in Victoria and New South Wales at the time of Federation. Surely these disparate state and federal laws which quite frequently affect the most vulnerable in the community—children of separating parents who are potentially subject to abuse—require all of us as legislators at both a federal and state level to do all that we can to overcome the constitutional limitations that prevent a composite model being applied to the situation.

The next item that the opposition is concerned about is the proposal in the bill to require the Family Court to order that each party to the proceedings must bear the costs of a child representative in the proceedings unless a party receives legal aid funding or would suffer financial hardship. Legal aid guidelines introduced by the Howard government require child representatives to seek such a costs order, although in many cases the Family Court has refused to exercise its discretion to make one. I note at this point that it does currently have the discretion to make such orders.

The amendment proposed would inevitably change the way the Family Court considers these applications for a children's representative and would result in more cost orders being made. This measure drew the most criticism from the Senate committee inquiry. It was submitted that this could make it harder for separating parents to reach full agreement and could make them more antagonistic towards the appointment of a child's representative. It was also thought that it could prolong litigation as separating parents disputed the amount of the costs, the proportion they should be required to pay or even whether it was appropriate for the child's representative to explore a particular issue over the course of the litigation if that particular issue and the time spent on it would generate additional costs.

We acknowledge that more children's representatives have been appointed since the Family Court's decision in Re K and that this has meant a greater call on legal aid resources. But we really must question whether there are better ways for the Commonwealth government to save money than to charge separating parents in a way that may harm the interests of their children in family law proceedings. In my discussions with officers of the court I have heard that children's representatives can often play a truly constructive role as a genuine friend of the court, as opposed to siding with one of the warring factions, in the important area of the interests of the child. We will refrain from amending the bill and wait for the Senate committee's report but, in light of the considerable disquiet expressed during the inquiry, we would strongly urge the government to reconsider this measure before the bill is debated in the Senate.

In conclusion, subject to the two matters I have outlined, the opposition supports this bill and the continuing reform of the family law system in the interests of families coping with separation. By and large, this reform has been undertaken by governments of both political persuasions in a cooperative and bipartisan spirit, which is desirable when dealing with the intense and complex issues involved in family separation. It is to be hoped this approach will continue with the current inquiry being carried out by the House of Representatives Standing Committee on Family and Community Affairs. It would be remiss of me not to express my disappointment that the term `child custody', with all its connotations of parents winning and losing ownership of their children, has crept back into the debate surrounding that inquiry. As the Attorney-General would remember, that terminology was found many years ago to be counterproductive and contrary to the idea of shared parental responsibility. I hope that those responsible for leading the debate, including the Prime Minister, can in future use language that better expresses the policy of family law of encouraging parents to share responsibility for the care and welfare of their children.

In terms of the subject matter of the inquiry of the House of Representatives Standing Committee on Family and Community Affairs, I have publicly congratulated the Attorney-General on the way in which he has pursued the issue of reform of family law and the fact that he has acted in accordance with appropriate research and advice from these professional and expert committees with appropriate consultation—albeit that there is always some possibility of making improvements in the area of consultation. I have congratulated the Attorney-General on the way in which he has gone about reform in this highly emotive area of the law. I must express my disappointment, in terms of reviewing the issue of the care of children, that this seems to have been promoted as a political agenda item by the Prime Minister contrary to that detailed assessment done on the basis of professional recommendations made by appropriately trained and qualified bodies. Exploration of these issues is justified, given the changing trends in society and so forth, and the opposition is not opposed to reviewing these issues. I note, however, that these issues have the potential to be incredibly divisive and incredibly emotive. When you are dealing with such a crucial issue as the welfare of children, we would like to see decisions made on the basis of objective, tested analysis rather than on the basis of fostering a politically advantageous position in what can be not only quite an emotive debate but also, if we get it wrong, quite a destructive debate.