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Tuesday, 23 November 2010
Mr KEENAN (8:10 PM) —I rise to speak on the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010. The family law framework largely deals with parenting arrangements and ensuring that they are in the best interests of children, particularly in situations in which they are at risk or where their parents or carers are separating. Child protection is principally dealt with on a state and territory basis under state and territory legislation, while parenting arrangements are dealt with under the Commonwealth Family Law Act 1975. Australian domestic law also enshrines some of Australia’s responsibilities under international law. Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which is dealt with in the Family Law Act 1975.
Notably, on 22 May 2006 under the former Howard government, this parliament passed amendments to its Family Law Act 1975. The Family Law Amendment (Shared Parenting Responsibility) Act 2006 applies to any court matter concerning children who were in court on or after 1 July that year. A stated objective of this law is to guarantee that the best interests of children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child. The primary objective of this law is to ensure that the courts always have the best interests of the child as the overriding consideration.
Earlier, in December 2003, the House of Representatives Standing Committee on Family and Community Affairs tabled a unanimous report titled Every picture tells a story. The committee was asked to consider whether ‘given that the best interests of the child is the paramount consideration, what other factors should be taken into account in deciding the respective time each parent should spend with their children post separation’. The committee, headed by the then member for Riverina, Kay Hull, heard evidence from more than 2,000 witnesses over the course of the six-month inquiry. One of the findings that informed its many recommendations was that the entire committee—across party lines—believed the following: ‘sharing responsibility is the best way to ensure as many children as possible grow up in a caring environment. To share all the important events in a child’s life with both mum and dad, even when families are separated, would be an ideal outcome.’
The so-called shared parenting laws were introduced by the Howard government in 2006 in response to that report. The policy objectives of the 2006 reforms were to: help to build strong healthy relationships and prevent separation; encourage greater involvement by both parents in their children’s lives after separation and also to protect children from violence and abuse; help separated parents agree on what is best for their children rather than litigating through the provision of useful information and advice, and effective dispute resolution services; finally, establish a highly visible entry point that operates as a doorway to other services and helps families to access those other services.
The changes to the family law system included changes to both the legislation and the family relationship services system. The main elements of the legislative changes were to require parents to attend family dispute resolution before filing a court application, except where there are concerns about family violence and child abuse, and to place increased emphasis on the need for both parents to be involved in their children’s lives after separation, including the introduction of a presumption of shared parental responsibility. It also aimed to place greater emphasis on the need to protect children from exposure to family violence and child abuse and to introduce legislative support for less adversarial court processes in children’s matters.
Face-to-face contact between children and their non-resident parents is an important part of parenting after separation. The 2006 family law reforms, which introduced the presumption of shared parental responsibility, have been the subject of misinformed criticism in some sectors. The majority of those were answered by the Australian Institute of Family Studies longitudinal survey and the Family Law Council’s report to the Attorney-General. These reports found that the 2006 reforms worked well and had been well received in the community. In particular, the number of court filings in children’s matters has been reduced by 22 per cent, which has resulted in speedier and more dedicated access for the less tractable and most worrying cases. The family dispute resolution process was very highly rated by its users. A substantial majority of parents with shared care reported that the arrangements worked well for them and for their children.
One of the most controversial issues, however, arose from the reported cases in which mothers were allegedly being confined to remote communities by orders requiring equal parenting time for fathers. The coalition’s view was that the making of such orders arose from a misinterpretation of the reforms. In March, the High Court handed down its decision in MRR v GR, holding that court orders for shared time must be in the best interests of the child and reasonably practicable. The court held that restricting a mother to a certain location which denied her employment opportunities and caused her distress was neither in the best interests of the child nor reasonably practicable.
The view of the Attorney-General’s Department is that the decision casts doubt on the validity of certain parenting orders made pursuant to the reforms. The orders that may be affected are those where the parents have equal shared parental responsibility and the court has not considered certain criteria relating to equal time or, if the case requires, substantial and significant time in accordance with section 65DAA of the Family Law Act 1975.
As mentioned in the bill’s explanatory memorandum, the bill creates new statutory rights and responsibilities and ensures that these are exercisable and enforceable as if they had been made under the act, while preserving appeal rights against orders affected by the High Court’s decision. Those people with contested parenting orders will be able to commence fresh family law proceedings, where the court did not consider the reasonable practicality of the order, without having to demonstrate a material change in the circumstances.
The bill also amends the act to permit a court to consider the statutory criteria in subsections 65DAA(1) and (2)—the best interests of the child and the reasonable practicality of the arrangement—in relation to applications for consent parenting orders where the parents are to have equal shared parental responsibility. This will allow the court to give appropriate weight to agreements between parents.
The bill does not interfere with the 2006 reforms but seeks only to remove doubts as to the validity of orders made between the commencement of the reforms and the High Court’s decision. The few decisions that confined women to remote communities were a misinterpretation of the provisions, created misleading perceptions in the community and resulted in genuine distress for a small number of parents. The High Court’s decision and this bill should put the misinterpretations of the reforms to rest and reinforce the importance of the best interests of the children as the basic principle underlying the provisions of the act. I therefore commend the bill to the House.