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Tuesday, 23 November 2010
Mr NEUMANN (8:19 PM) —I speak in support of the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010. Basically, this bill arises out of a decision of the High Court of Australia in MRR v GR (2010) HCA 4. That full court decision was handed down by Chief Justice French and Justices Gummow, Hayne, Kiefel and Bell on 3 December 2009. The reasons were published on 3 March 2010. This bill overcomes difficulties caused by that decision.
The genesis of this goes back to the 2006 amendments to the Family Law Act. I was critical of those amendments at the time in a number of fora—I was then practising as a lawyer and not yet a member of this chamber. The 2006 amendments went too far and the Howard government got it wrong with respect to family law changes at that time. A culture of expectation has developed amongst lawyers, the general public, the community at large, family consultants, judges and magistrates that equal parenting time is what happens. In fact, that is not the case.
What happened at the time was that part VII of the Family Law Act was rewritten to create a hierarchy of considerations. There were primary considerations that a court had to consider and additional considerations the court could then look at if necessary. But a very complicated procedure was put in place whereby the court’s discretion with respect to family law, which could be found in the old part VII, was severely fettered. As a result, in many cases women were handing over children—particularly in what we used to call ‘contact arrangements’—in circumstances where they felt they needed to be ‘the friendly parent’ under the amendments and where they feared adverse findings by a judge or a federal magistrate, which would impact upon the continued residence of their children with them. The consequences of that were devastating for many children and, contrary to what the previous speaker said, those amendments have caused anxiety, distress and other difficulties in our family law system, in the Federal Magistrates Court and in the Family Court of Australia. This is not something that is esoteric, vague or obtuse; thousands of children every day, every week, every month are subject to orders of the court.
Relocation cases are very difficult, and this is a relocation case, and as a result of the decision that was handed down changes are necessary because of the High Court’s reasoning. The changes here are necessary because the best interests of children are always the paramount consideration. That is what it says in section 60CA of the Family Law Act. That, of course, is the new provision put in by the Howard government, but it was always the case in the old legislation stemming back to 1975 that the best interests of the child were the paramount consideration.
Section 61DA(1) provides a presumption, and it is a rebuttable presumption, of equal shared parental responsibility. Of course, that is what a court must look at. It must determine whether in fact there is equal shared parental responsibility and, having found that, the court then looks at whether there should be equal time and whether it is reasonably practicable for that to happen. That is always appropriate and only fair when there is a meeting of the minds between the mum and the dad and when there is geographical proximity—and often that is not the case when the tyranny of distance in a big country like Australia causes that not to happen. If the court finds that it is not appropriate for there to be equal time, the court then looks at whether there should be substantial and significant time with each parent and whether that is reasonably practicable. If that is not the case, then the court looks at any other orders it could make having regard to the hierarchy of considerations, the primary considerations being whether a child should have a meaningful relationship with both parents and the need to protect children from abuse, neglect and family violence.
What happened in this particular case—and this happens every day in this country—was that a child was born in 2002 as a result of a relationship, a father moved to Mount Isa in order to gain work experience as a graduate mechanical engineer with a mining company for a couple of years and the parties separated shortly after they had travelled back to Sydney for an awards ceremony when the mother said she wanted to stay in Sydney and the father said, ‘No, I have to go back to Mount Isa to live.’ She returned, following interim orders that were made, on 17 October 2007, and at a hearing before Federal Magistrate Coker—the mother and father were living in Mount Isa—he made the decision that the child live with each parent on a week-about basis.
His decision was upheld by the full court of the Family Court and then the case went on appeal to the High Court of Australia. Interestingly, my good friend Graeme Page SC—an old colleague of mine from the Family Law bar in Brisbane—was counsel for the respondent in the case. Graeme is an excellent barrister and it was always of some regret to me that he was never appointed to the Family Court bench. I think he would have been a worthy participant on the bench. He is a very fine lawyer indeed, one of the best barristers practising family law in Queensland.
The matter was considered by the High Court of Australia and the appeal really revolved around the interpretation of section 65DA, which requires the court to consider whether a child spends equal or substantial and significant time with each parent and whether it is reasonably practicable for that to happen. The court was indeed critical of Federal Magistrate Coker—again, a good federal magistrate in my experience; I appeared before him on numerous occasions—and his interpretation particularly of section 65DAA. The court made reference to the words at the beginning of subparagraph (c) of that section and the words ‘if it is’. When making an order a court must consider the findings it has made. In most cases where a Family Court order or a Federal Magistrate’s order is made, there is no finding made, effectively, and no reasons given because often they are consent orders. The parties have agreed to file consent orders in the Family Court or the Federal Magistrates Court, sometimes during litigation and sometimes before litigation starts, and they lodge those with an application to get them approved. Often a registrar, a federal magistrate or a judge will consider the matter and, if it looks in order, make the orders by consent.
The problem is that the court is not really making any findings there. Section 65DAA requires the court to consider the issue if it is making an order. That is where the problem lay and that is why these things need to be changed and why this bill is before the chamber right now. It was necessary for Federal Magistrate Coker to consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances, having made some findings. So the court did acknowledge that His Honour Federal Magistrate Coker ‘did not expressly address the issue of whether an equal time arrangement would be “reasonably practicable”‘. That is where the problem lies. This is not an obtuse problem. It really is a very significant problem because in every registry across the country—in Sydney, Melbourne, Brisbane, wherever it may be—decisions are made all the time, as I said, without those findings taking place. This bill responds to that decision, which casts doubt on the validity of those kinds of parenting orders made, or purported to be made, without the court providing findings about the criteria set out in section 65DAA of the Family Law Act.
The bill creates certain statutory rights and liabilities that are in line with rights and liabilities under effective orders to ensure that those families can continue with their parenting arrangements pursuant to valid orders, and the statutory rights and liabilities can be relied on in the circumstances. The bill validates any action that had been done. Often, as we know, orders are made pursuant to those orders and they are usually enforcement orders, and so they are valid. For parenting orders made with the parties’ consent after the commencement of the bill, the Family Court and the Federal Magistrates Court may, but will not be required to, make findings about the criteria set out in section 65DAA.
So, what we are doing is correcting a problem caused by a decision of the High Court. It really comes back to some quite sloppy statutory drafting. When you look at section 65DAA, the High Court got it right—the legislative drafting was inadequate and a problem could arise in certain circumstances. It is important that we fix this problem and remove any doubts for families affected by parenting arrangements. We need to make sure that the parenting arrangements pursuant to those court orders are valid where they are made as a result of a determination by the Family Court or the Federal Magistrates Court after a final hearing or whether it is a consent order or any sort of parenting arrangement under a parenting agreement.
It is important that schools and teachers and doctors and court counsellors and psychologists and anyone associated with families who have had a court order can have certainty and can rely upon those orders. This bill will preserve the rights of parties to appeal or seek variations of those parenting orders. It will ensure, as I said before, that the courts may, although they are not required to, consider those matters in section 65DAA when making orders after the bill commences. It is a practical and sensible change, and it fixes up a problem that has been highlighted by the full court of the High Court. I commend the legislation to the chamber.