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Wednesday, 13 August 2003
Page: 18491


Mr MURPHY (11:15 AM) —The second reading of the Family Law Amendment Bill 2003 today is broadly supported by the opposition, with the indication that it is the intention of the opposition to refer this bill to a Senate committee and reserve the right to move amendments depending on that committee's recommendations. The bill makes a number of significant amendments to the Family Law Act, the most important of which deal with the substantive issue of what are called parenting plans. As the Committee is aware, parenting plans replaced what were called child agreements under the Family Law Act. The primary difference between these two instruments is that child agreements could be made as of right—that is, without judicial scrutiny—whereas parenting plans are not binding unless there is judicial sanction.

This development in family law cannot go unnoticed or without comment. Unfortunately we are seeing a pattern in family law that progressively increases the power of the state over the power of the parents. Part of this trend gives rise to an ever-increasing level of government intervention in families. In these circumstances I take the opportunity in this debate on this bill to stand up for marriage and for families. I ask the question: what is the purpose of this legislation? Is it a realisation that parents as a group are so lacking in terms of making decisions on their own behalf that it takes the broader wisdom of the state to determine what is the interests of the child and, now, the interests of the parents as well? Children are now frequently represented by separate legal counsel at proceedings. Even if the child is not legally represented separately from the parental parties, the court is the ultimate determinant of what is in the best interests of the child. However, with this legislation comes the implied assertion that, in order to settle disputes in the old system of child agreements and overcome the perception of winners and losers, we must implement a more cooperative approach through parenting plans.

The real winner in this new regime is not the mother, the father or the child; the real winner is not the husband or the wife. The real winner in this slippery slope of legislation is the state. It is the state that determines who is right and wrong in a parenting order. It is now the state—through its agency, the Family Court—that determines the conditions of these orders and even the existence of the so-called parenting plans themselves. It is the state that determines what is morally right and wrong by saying what is legal and illegal. According to this proposal, the only legal parenting plans will be those which are registrable—gone will be the discretionary child agreements registrable at will, without scrutiny, by the parents.

This parliament has, in my opinion, forgotten the purpose of the state, so it might be helpful to remind the House and the parliament what role the parliament and the government play, particularly with respect to parental rights. The right of parents is an immediate right over the children. That right is born naturally from the procreative right to rear children. Even in separation, dissolution and annulment of marriage, the intrinsic parental right remains. That right can never be extinguished, subrogated, substituted or amended by the state. The best that the state can do is hold mediate rights—that is, intervening rights on behalf of the parent. The state cannot be the parent, the state is never the parent, yet this is the direction of this legislation. Increasingly, it is the state that is usurping more and more power unto itself, with increasing Family Court powers.

It is asserted that parents are demonstrating more and more resistance to demonstrating parental responsibility. This phenomenon is due to mixed messages that the government is giving individuals as to the nature of marriage and the nature of social structures such as family, parenting and marriage. It is the government—the Commonwealth—which has broadened the definition of marriage. Sadly, the whole rubric of marriage, family and parenting is breaking down. On the back of this is the growth of what can only be described as the divorce industry. A registration check of the New South Wales Law Society's specialist accreditation shows a staggering 444 accredited specialists in family law, towering above other accredited specialisations. The legal profession, the state governments and other bodies are raking in the money in the divorce industry, carving up the matrimonial home and leaving armies of divorced, financially destitute single mums and suicidal dads to cope with the devastation and pick up the pieces.

For all this, we do not see a serious attempt to address the real issues of family segregation through proper parenting formation but changes, as embedded in this legislation, that will ensure an even wider interpretation of the word `marriage' to include void and dissolved marriages. If the government were serious about assisting families in the tragedy of divorce, it would support proper preventative measures such as premarital counselling and the encouragement of proper preparation of marriage celebrants through mainstream marriage preparation. Instead the government contents itself with increasing the powers of the state in the control of the family and marriage and establishes itself as the sole advocate of the interests of the child. I note that the only body named in the so-called consultation process for this bill is the Family Law Council. I see nothing regarding broader consultation with the larger body of marriage celebrants and family preparation groups, including the mainstream churches.

This is a case, I fear, of ramming legislation through without adequate community consultation, and for this reason I agree with the opposition in moving that this bill go to a Senate committee and that the committee invite the mainstream churches to advocate, from their position of wisdom, on the matters of family and marriage. For too long we have seen the powers of the state usurp the powers of parents over their own children and even the powers of parents over their own lives. Upon entry into the Family Court, the parties to the proceedings effectively lose their rights in favour of the state, which assumes a power greater than it is entitled to in its mediate role.

This is the one jurisdiction where church and state must enter into dialogue. The interests of the family unit, the interests of the institution of marriage and the interests of the child must meet in harmony. This government parades itself as a family oriented government. If the government is serious about parental rights, family rights and the sanctity of marriage then it will advocate that the Senate committee invite true consultation, which was so obviously lacking in the bill's drafting. I therefore urge that the opposition's request be granted to refer this bill to a Senate committee, with the proviso of full community consultation with interested parties.