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Wednesday, 13 August 2003
Page: 18481


Mr CAMERON THOMPSON (10:25 AM) —This discussion on the Family Law Amendment Bill 2003 is very timely, given the extent of community concern and discussion about the issues in family law. In addressing this debate today, like the member for Barton who just spoke, I intend to range fairly widely over the various issues associated with the problems concerning family law, these particular amendments and those amendments that I suspect also need to be considered in order for us to continue to progress the cause of a better family law system in Australia.

The government amendments in this bill correct drafting errors and introduce an additional amendment to the Family Law Act 1975. The issues we are addressing include the making of submissions by way of video or audio link and looking at drafting errors. There is also a new subsection, 90C(2A),which will ensure that parties to a marriage can make a financial agreement after the marriage breaks down and before the divorce is finalised. They are important amendments, and there are a range of issues there that have been canvassed by the opposition spokesman in his speech.

In addition, I think we need to consider the overall position, and that is the fact that the Family Court and family law play an increasingly important role in Australian society. We are now in a position where so many of the activities of families that fall within the family law's path are directed by the Family Court. The editorial from the Sydney Morning Herald on Saturday, 21 June 2003 starts off saying:

Every second weekend and for half the school holidays, tens of thousands of Australian children pack their bags and move house.

They do that because of the way the Family Court has ruled in their cases. The editorial goes on to say:

Mostly they are going to visit their fathers. Mostly their fathers want more time. Family law in Australia does not prescribe this, or any other, visitation formula. The Family Court does, however, frequently interpret its brief in this way when ruling in child “residency” disputes.

You can see that the way we frame family law and the way the court interprets it really does have a massive impact on the day-to-day life of many Australians. It impacts on their quality of life, their aspirations for the future, their capacity to benefit from their family surroundings and their ability to get maximum benefit for the children of a family in order to build their lives upon it. According to that same editorial, currently:

Almost 70 per cent of Family Court rulings nominate the mother as the primary, residential carer. Just under 20 per cent of decisions give that right to men.

Reading on, it also makes what I think is a very basic point that we all need to consider in all of these debates:

Divorce makes parents and children poorer, because the family income must be divided.

I think that is something that people whose marriages fall into conflict can often overlook. The extent of the hurt involved in the marriage can make them think that perhaps they would be better off if they divided. The editorial makes the very clear point that that automatically makes parents and children poorer. We need some legislative activity and some community discussion about processes by which we can make that abundantly clear to people. While people continue to fantasise that things will somehow get better when they split up, in some cases there is a tendency for people to rush to end their marriages. I think that is a terribly destructive thing in our community.

I compliment the government on continuing to drive forward the need for change and consideration in this area. There has recently been a proposal for a one-court system, which was also discussed by the opposition spokesman. I think it is a good proposal. We need to try to reduce, to pare back, the levels of bureaucratic involvement that people are subjected to when they engage in the process of divorce. The amount of stress that is placed on an already stressful situation is a real concern. A meeting of all Australian attorneys-general agreed to set up a working group to examine how best to reduce the stress on families required to attend meetings before multiple courts as part of the process of separation. Under the one-court principle, a separating family should be able to deal with all family law and child protection issues in the one court, rather than dealing with a number of different courts and different jurisdictions. When people have to constantly relive all of their problems, it is no wonder that stressful situations become more and more difficult and spin further out of control. I do endorse that change which the attorneys-general have newly confronted, and I urge them to continue to promote it.

The biggest driver in the discussion of these family law issues has been the commissioning of an inquiry by the House of Representatives Family and Community Affairs Committee to look into child custody arrangements. An article in the Age on 12 August stated that there had been a huge response to the government's call for public submissions on the topic of child custody arrangements.


Mr Price —Residency.


Mr CAMERON THOMPSON —I accept the criticism of the member opposite: I am sorry, I was reading my note from the Age; they referred to it as `custody'. I do agree with the member opposite that `residency' is a far better way to put it. We do have to try to get away from terms that create a punitive slur against one party or the other; we have to try to be straight up the middle in resolving these things. Naturally that has always been the aim, but terms like `custody' come along and they get repeated and, unfortunately, they live on in the psyche of people. It does affect the way people view themselves and it can have horrendous consequences further down the track.

The spokesman opposite was negative about the idea that this process should be political. He was saying that perhaps we should look more at having professional bodies try to determine the best way out of this. The fact is that at the moment those professional bodies are conducting this debate, but we are still not seeing any light at the end of the tunnel. I think, like me, all members of parliament, regardless of where in Australia their electorates are, receive heaps of complaints and concerns and have approaches made to them every day about issues concerning family law. Family law and the Child Support Agency is certainly one of the top three issues confronting members of parliament.

This is a demanding situation. It has to be responded to in a political way as well as within the bureaucracy otherwise we will wind up with incremental change that results in a swamp of bureaucracy. When people are upset and stressed about their marital situation and their divorce and are trying to address issues of settlement and, more importantly, residency of children, their whole future and aspirations hang in the balance. When we require them, again and again, to confront different elements of the legal system, it creates a lot of difficulty. I will make some comments later about that.

The inquiry into child residency arrangements had attracted 1,100 submissions by the deadline, and there are still other submissions to come from people who, by agreement, have been given an extension of time. I congratulate the government on referring this matter to the Standing Committee on Family and Community Affairs. I am a member of that committee. That committee has been working extremely well and it will soon report on substance abuse. From my knowledge of the way in which people within that committee have been able to communicate with each other, I cannot imagine a better committee to take on this very sensitive and difficult issue of child support and residency arrangements. I think that has been a very good choice by the government.

There are many troubling factors that reflect on this issue. There is the whole question of boys growing up in a society lacking male role models. That has been raised not only in the context of families but also in the context of schooling with inquiries looking at male influences on young boys, and that is an important issue. A report in the Sydney Morning Herald on 22 July by Patrick Parkinson states:

... 36 per cent of Australian children did not see their father in the previous year. Both separated men and women agreed on the need for fathers to be more involved: 74 per cent of men wanted more contact, and 41 per cent of mothers wanted the father to have more contact.

Some of this debate has been characterised as being a campaign by men's groups, but I think you can see in those statistics that it is not just men who are concerned about resolving this issue of family law; the mothers of these children also want to see a better outcome.

I strongly support the proposal which has been put forward about a rebuttable presumption of joint residency, although not in all cases, I have to admit, because I think you run into difficulties. The cases that concern me are those where people make a pre-emptive decision—an early decision; a wrong decision, in my view—to split. I think these decisions can be influenced by the idea that, on the one hand, a parent can run away and duck their responsibility for the children or, on the other hand, a parent can somehow manipulate and control the children to spite the other party or get the outcome they desire. In both those cases, this idea of a rebuttable presumption of shared residency would absolutely stop the immediate presumption people have that, `My problems would be solved if I could just either run away or get complete control of the children.' It is not about that question of control either; it is about your responsibility to the child.

Often we see comments from people—the member opposite was using these exact words, and we all agree with them—that the question has to be: what is in the best interests of the child? I think many of the presumptions made now about what is in the best interests of the child are not necessarily right. For example, the assumption that because someone has been what they call the primary carer that should automatically translate into that person getting 100 per cent of the care or the lion's share of the care is flawed. Yet so much of what seems to be done within the system currently is based on that assumption. At the last official count, 55,300 couples a year are divorcing. Half of those cases go to the Family Court and the other half go to the newly created Federal Magistrates Service.

People trying to grapple with this problem and to see sides to the issue other than their entrenched position would do very well to look at a quite lengthy and involved article by Ian Munro in the Age. It involves some interviews with people who are directly involved in the system. There are a couple of comments in this article that I want to refer to. It quotes a family law specialist, Lee Formica, from Morris Blackburn Cashman. The article says:

Something people say about the Family Court—you must be a good hater if you are to have your day here.

Lee Formica is quoted as saying:

“Someone who is really dreadfully hurt, the agenda is the hurt, and you can use the legal system to perpetuate the hatred and the hurt.”

The article continues:

Animosity ties people into litigation, she says, but they have to be determined, since the court places obstacles in their path.

Former chairman of the Law Council of Australia's family law section, Michael Taussig, QC, says that amid the continual change of form that seems to typify the court is more procedure and higher costs.

In a typical financial case, the path to a final trial in front of a judge is marked by a case assessment conference, a conciliation conference, a trial notice listing and a pre-trial conference.

“There used to be one or two appearances between the start and the finish,” Taussig says. “It's a cause of significant cost blow-out, so far as the client is concerned. It's said to be in the interests of the clients by giving them a chance to settle, but some clients say, `if we wanted to settle we'd sit down ourselves and do it.'”

That refers to what I was saying before. If we incrementally allow professional groups to look at what might fix this problem, we will probably wind up with layers and layers of these bureaucracies and hearings and things being added in, and all that results in is more hurt and more anger for the parties involved.

There are also some quotes from Rosa Silvestro, a mediator who works in the mediation offices of the court. She has been counselling fractured families at the Family Court since 1978. When she started, the battle was fought over whether non-custodial parents—fathers usually; sorry about the use of the term `custodial' but I think that was the term used at the time—should have any contact at all with their children. The article says:

“People no longer argue the merits of contact; they argue about how it should occur,” Silvestro says. “It's all about anger and punishing ... when you are arguing about how it should occur, it's still people using children to punish the other party,” Silvestro says.

That covers another angle. It shows that there have been developments; there have been changes. We are now up to 20 per cent—and, as I said, it was much lower than that—of men having their children reside with them. Silvestro also says—and I agree with this 100 per cent:

“One thing I would say is, if you have any chance of keeping your marriage together, it's better than going on the path of separation. I am not saying don't get divorced at all (but) no matter how mutual the decision to separate, it's never as easy as people expect it to be.”

It is so important to get it out there in the minds of people that it is not a simple process. It is a difficult and very destructive process. People have the idea—and I think this extends right down to teenagers—that they can duck their responsibilities, do a runner and manipulate the legal system to basically take someone for all they are worth in the settlement by having a better lawyer, having legal representation or in some other way manipulating the court or the children. All those perceptions are very strong in the base of our community, right there among kids themselves. When people grow up with the perception that this is how the law works then we have a fundamental problem. We have to change that perception so that people are more aware of, firstly, their responsibility to their children. You cannot bring a child into the world and then not have responsibility for it, no matter how twisted and perverted your view of the law may be.

In closing, I am pleased to be able to be part of this inquiry the government has in place. I do not believe that the question of the rebuttable presumption of joint or shared care is the be-all and end-all but I think it is a very positive start. I am really looking forward to cracking open some of the other potential issues that can be looked at as part of that committee and I urge all members in the parliament to have a say in that process.