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Wednesday, 13 August 2003
Page: 18497


Mr MOSSFIELD (11:43 AM) —I rise to speak on the Family Law Amendment Bill 2003, which is an omnibus bill making a number of amendments to the Family Law Act 1975. There is probably no more contentious issue than family law and the operation of the Family Court. This is because of the high levels of emotion usually involved with the breakdown of marriage and access to children. Accusations usually fly and each party attempts to lay blame and hurt the other. The child is often the one who suffers the most. In this area, more than any other, people define themselves as either winners or losers; usually, because they do not get everything they want, it is the latter. This is a policy area that needs constant attention and continuous updating. This bill is part of that process.

In 1995 the House of Representatives passed the Family Law Reform Act, which came into effect on 11 June 1996. One of the provisions of that bill was to replace the child agreements then in place with what were known as parenting plans. Once registered, the child welfare provisions of a parenting plan—those dealing with the person with whom the child is to live or contact between the child and somebody else, and so forth—would be enforceable. The key difference between the new parenting plans and the old child agreements was that, while the child agreement could be registered as a right by parents with no judicial scrutiny whatsoever, the parenting plan would need to be sanctioned by the Family Court after the parents had provided detailed information and a certificate by a lawyer or a family or child councillor. These plans were designed to promote a cooperative approach to parenting after separation.

The original provisions of the bill reflect a compromise struck in the parliament and differ substantially from an earlier draft bill which provided two types of plans, the first being a registrable, enforceable agreement and the second being an unregistrable and unenforceable plan. The bill was considered too complex and it was perceived that the provisions for scrutiny were insufficient in some areas. Hence a compromise was reached that would allow for registration of parenting plans that could have unenforceable sections.

In 1997 the Family Law Council and the National Alternative Dispute Resolution Advisory Council recommended that the 1995 provisions governing registration be repealed. The Attorney-General then called for an extensive review of the 1995 arrangements, to which both councils again repeated their advice. The government's acceptance of that advice is what we see reflected in this bill today. The reason for repealing the sections dealing with the registration of parenting plans is based on the following considerations. Registered parenting plans are inflexible. They can only be varied by registering a completely new plan and revoking the old one. This process is cumbersome and expensive. It has also proved confusing that some parts of the parenting plan are legally enforceable while others remain nonbinding. Family lawyers have actually made little use of the parenting plan and instead have sought what is known as consent orders, which achieve the same outcome. This alternative of seeking consent orders is simpler, clearer and far more flexible.

If this bill is passed, the Family Law Act will continue to encourage the use of parenting plans as an informal, legally nonbinding agreement. So essentially what we have here is a new system introduced in 1995 that has not quite worked out the way it was intended. What was intended as something that would promote a cooperative approach to parenting after separation has instead become a cumbersome, inflexible, expensive legal minefield. The government has reacted by amending the act through this bill to address some of these concerns. The parenting plans will continue to be encouraged, and this is a good thing. The cooperation between the custodial parent and noncustodial parent in the raising of a child is incredibly important to the child's growth and development. Consent orders can still be obtained to create enforceable obligations, which is also important in providing the structure that such arrangements need. This is one area of law that needs a great deal of flexibility because no one size fits all. The compromise scheme that was introduced did not contain the flexibility that is needed in this policy area. This bill puts some of that flexibility back into the system.

Schedule 2 of the bill is a noncontroversial item dealing with the use of video and audio equipment in the Family Court proceedings. Again this section will create some flexibility. Schedule 3 deals with changes to the management structure of the Family Court and better delineates the differences between the administrative and judicial functions of the registrar. Again, any change that clears up confusion is a good thing, and this will be supported by Labor.

This bill contains a number of minor changes to the parenting compliance regime and these are contained within schedule 4 of the bill. As members would know, there is a three-stage regime for the enforcement of parenting orders—preventative, remedial and punitive. Stage 1 provides for preventive measures to improve the communication between separated parents and to educate parents on their responsibilities under the scheme. Stage 2 encompasses remedial measures and enables parents to resolve issues of conflict about parenting. Stage 3 covers punitive measures which ensure that, as a last resort, a parent is punished for a deliberate disregard of the court's order. This is a sensible approach to conflict resolution in this highly charged and emotive field.

The key changes that this bill makes add flexibility to the system. For example, at present the court can order a person to attend a post-separation parenting program only if enforcement procedures are brought following an alleged breach of a parenting order. This bill adds the flexibility that such an order can be made at any time during the proceedings for a parenting order. There are a number of other orders and options made available with this bill to adjust this stage 3 resolution process—and, as I said, make the system more flexible and user-friendly. These changes are also supported by Labor, as they build on and enhance the current system.

Schedule 5 of the bill makes some minor adjustments to the regime for binding financial agreements which were introduced by the Family Law Amendment Bill 2000. The amendments are mostly technical but are soundly based and consistent with Labor's position when the original legislation was passed; so we have no objections to them. When examining schedule 5, Labor were concerned to ensure that the financially weaker party—often the woman—were not disadvantaged by a binding financial agreement. Having said that, the number of men who come into my office claiming hardship due to child support payments considerably outnumber the women. Quite often these men genuinely want to provide for their children and are supported in their actions by new partners and sometimes other members of their family. One claim that is made is that the child support payment should be based on the net income, and in many situations these men claim that they are left with insufficient income to commence a new life.

On this point, I will mention a few other things, without going into detail, that are raised by people who come into my electoral office. I have no doubt that other members experience exactly the same thing. Access to children is one issue, where meeting arrangements are not kept. Problems with payments for the welfare of the child include situations where people are able to hide their true income and where the non-custodial parent is earning less income than the custodial parent. Also, if a non-custodial parent makes payments towards the child's education, medical or dental expenses, they cannot claim those payments against their taxable income. These are some of the things that people raise when they come in to see me. However, the changes in this bill, which Labor supports, require that the court will be empowered to make a maintenance order that overrides the effect of the financial agreement if the circumstances of a party at the time the financial agreement came into effect render them dependent on government income support. Currently this power refers to the circumstances of the parties at the time the financial agreement was made. The changes make sense, as the court, when considering whether to make a maintenance order, will be more concerned with the circumstances of the parties during the period the financial agreement has effect.

A further change under this schedule requires 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 making the agreement. This change follows concerns expressed by the legal profession that it was being required to provide financial advice based on uncertain future matters. This is a very difficult and touchy area of policy. Not everybody will be happy, but we have to consistently address the ramifications of the legislation we pass and, where enhancements to the system can be made, they should be.

Schedule 6 of the bill deals with orders and injunctions binding third parties, such as friends or relatives of the parties to the marriage as well as businesses and financial institutions. These amendments will significantly expand the powers of the Family Court and Federal Magistrates Service to effect divisions of property and protect parties to a marriage. This expansion of the powers is counterbalanced with measures to protect substantive and procedural rights of a third party. Given the broad nature of the powers, it is difficult to foresee every practical consequence of their operation, so we may be back here debating further amendments in the future—but then that is what we are supposed to be doing. I believe that it would be appropriate for a Senate committee to consider this schedule in more detail. One issue to be considered, for example, is the implication of these powers for proposals to prevent the use of sham family law arrangements to avoid the payment of tax.

The final schedule of the bill—schedule 7—makes a number of miscellaneous amendments. Firstly, there are a few technical amendments to facilitate the simplification of the Family Court rules currently being undertaken by the court. Secondly, there are a number of amendments dealing with the admissibility or inadmissibility of certain types of evidence regarding child protection. The amendments were recommended by the Family Law Council in its September 2002 report entitled Family law and child protection, which followed a four-year inquiry. They will 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.

Labor has always taken a strong position regarding child protection and has a strong policy position on the creation of a national commission for children and young people. The changes signalled here are in line with our strong stand on this issue and as such we will be supporting them. The area of family law is one surrounded by controversy. It causes great anguish and distress to many people who are forced to make use of the family law system. The issue of the break-up of families and the hurt and bitterness that this often causes exercises the minds of all federal members of parliament.

In handling the day-to-day queries on family law, we are greatly assisted by our contacts at the Child Support Agency. One such contact who has provided valuable advice to my office on this issue is Nancy Fullerton, who has recently retired. I thank Nancy for her advice and wish her well in her retirement. I am very grateful to the Child Support Agency for the information seminars they organise for clients. They have proven very popular, with over 300 people attending each of the seminars that have been arranged in Greenway over the past two years.

One of the problems with family law is that it keeps changing. We tighten the system here or add a bit more flexibility there, and this bill is an example of that. The seminars that the CSA organise help those affected to better understand both their rights and responsibilities within the framework. On the surface, this appears to be a non-controversial bill, adding flexibility and reducing confusion. As such, Labor support this bill in principle, but we also believe that, given the sensitive nature of the issue, it would be appropriate for a Senate committee to examine the bill in greater detail. We reserve the right to move amendments should any shortfalls in the objectives of the legislation be discovered.