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Tuesday, 23 November 2010
Page: 3513


Ms SAFFIN (8:31 PM) —I rise to speak in support of the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010. The honourable member for Blair talked about the bill correcting a problem that was presented to us arising from a High Court decision. I know he meant that in the general sense, and it was a problem we had to grapple with—a whole lot of orders had been made over a period of years that did need to have some certainty put around them because of the decision of the High Court. I suggest that the problems started a long time before that. As the honourable member for Blair said, there was what he called inadequate legislative drafting and also there was the matter of interpretation. Interpretation is not always done in a vacuum; it is not always done in a pure black-letter sense. I can see that interpretation was somewhat of an issue with the High Court decision.

I have not had the opportunity to go back over the second reading speeches, which I did look at at the time some of these changes came in. I have always been interested in family law, having worked in the area and having worked as a solicitor as well. At the time there was a lot of discussion about shared parenting—that was the trend and that became the norm—and shared parenting became writ large as equal time. There was certainly a big push for that and a lot of lobbying. With all of those things that were happening—there was the legislation itself and the acculturation of shared parenting—shared parenting came to mean equal time and it meant you had to live almost side by side, or you had to live in close proximity to make it work, and that became the norm.

That is how I saw it, and I was interested in the issue not just from the legal aspect but also from the aspect of the best interests of the child. Every member in this House subscribes to, believes in and talks about the best interests of the child but those best interests can be really difficult to achieve in practice. Again, I have had some experience in dealing with those issues and trying to interpret what is in the best interests of the child in work that I have done before the courts, in work that I have done in juvenile justice and in work that I have done in a whole range of areas. In the early years, I was part of the lobby in Australia that got up the Convention on the Rights of the Child—and we got it up in a very bipartisan way. Giving expression to looking after ‘the best interests of the child’ can be really challenging. I have not been persuaded that the Family Court has always got it right. I say that in the context of knowing how difficult it is to get it right, particularly when the cases that come before the Family Court are usually quite protracted and there is a lot of emotion, a lot of angst and a lot of ill-feeling by the time it gets to the court for a determinative decision. That can be very problematic, and you almost need the wisdom of Solomon to make decisions about what is in the best interests of the child at that point.

I was not surprised by the decision of the High Court when I read the case and heard it reported, as I had my own views about what the section meant and how it had been interpreted and acculturated. This bill brings certainty to decisions that have been made on the basis of an interpretation of this section. That is necessary, and we as a parliament and as legislators do have to bring certainty to those orders, to those situations. I hope that arising out of this decision and our creating certainty from what has gone before we can also start to look at the whole area of shared parenting. That can mean different things in different situations—there is no formula. That is the case in many areas.

I know it can be dangerous to argue by analogy, but I am about to do it. I was on the Social Security Appeals Tribunal and we would apply the law when matters came before the tribunal for our decision and review. That can be very different to applying what had gone before us. The decision makers before us had interpreted the law in particular ways so that they could have a broad policy framework that provided certainty and allowed them to make their daily decisions. It did not mean that they always got it right.

The social security law had changed to essentially say that people who moved to an area where they were less likely to get a job than in the area they had lived in would lose their benefits for a certain amount of time. It was interpreted into a policy framework that was based on a statistical analysis that did not always apply to individuals. A lot those cases would come before the Social Security Appeals Tribunal and, given the circumstances, the policy framework would not apply and they would fail. That can happen in all areas of the law that I have seen.

I am not suggesting that it happened in this area, but I do know the climate that surrounded the decision to have shared parenting. There is nothing wrong with shared parenting—it works well when parents agree—but it can be really difficult to adhere to a strictly formulaic approach when you try to enforce something from the court. We do not live our lives like that and yet you can have decisions that require that approach. In supporting this bill, I would like to refer to the Attorney-General’s second reading speech, where he said:

The rights and liabilities created by the bill are declared to be the same, and always to have been the same, as if the court had considered the relevant matters under section 65DAA of the Family Law Act before making the order.

That is the essence of what this bill is about. He went on to say:

The approach taken by the bill is based on a similar approach upheld by the High Court of Australia in a case known as R v Humby; ex parte Rooney (1973) …

And it certainly does that. As the Attorney-General said:

The bill has two purposes.

First, it ensures that parenting arrangements under orders affected by the High Court decision continue to have effect. Second, it streamlines procedures for orders that are made in the future that provide for parents to equal shared parental responsibility for their child.

Both of these purposes are critical. With those comments, I commend the bill to the House.