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Thursday, 26 March 1987
Page: 1407


Senator ZAKHAROV(4.43) —I would like first to say something about the timing of this debate. I find it interesting that, although this Family Law Amendment Bill was introduced well over a year ago and there have been many opportunities at this time on a Thursday in General Business time for it to be brought forward, the Opposition waited until the Government produced its proposals and then tried to show that really such reforms were its idea all along, as Senator Peter Baume did in debate the other day. If it was the Opposition's idea all along, I would be interested to know why this Bill was not proceeded with at any stage in the last 15 months or so. I quote from Hansard of 24 March what Senator Baume said the other day:

This is an occasion on which we believe the Government has taken notice of what the Opposition has proposed. It has taken notice of the problem as we have identified it . . .

That is grossly simplistic, to put the kindest complexion on it, because in fact-and I can speak as someone who has been involved in these discussions all along-the Government has been working on this matter for over three years. It is a matter which was debated in the community long before that. Before I became a member of this Parliament I was involved in discussions of this very matter. It is certainly not true to say that suddenly the Government acted after Senator Durack introduced his private member's Bill. Our involvement has been not only long but also wide. It has involved a great deal of community debate. I am very well aware of the time that that has taken, because I know of the individual representations I have had made to me. Probably because I am the only woman Government senator from Victoria, I tend to get a lot of representations from women in the community, particularly from rural areas.

This has been a matter of considerable concern but it has also been a matter of knowledge among those people that the Government is intending to do something. That is because many of them have been involved in the debate or else were invited to take part in the debate and the various community consultations but were not always able, for reasons of family responsibilities or distance or whatever, to take part in them. In fact, I have been pleasantly surprised at the degree of involvement and knowledge, particularly of women. Of course, most of the custodial parents are women, although not all by any means. When we talk about custodial parents there is a tendency to think of them as being women; but in fact some are men, and some male custodial parents are in just the same sort of need, and these provisions which the Government is proposing to make will benefit them also.

All these discussions were well in train before Senator Durack's Bill was introduced and certainly they have proceeded according to plan over the intervening period. But I point out that this is something that one does not rush into, because it is a very sensitive area. I believe the Government has approached it sensitively. It is not nearly as easy as Senator Durack's proposed amendments to the Family Law Act suggest. We have to look not only at the question of the ability to pay, of both partners-whether they be male or female-but also at the question of the formation of second families. That can be a very complex issue. It may not be only a second family; it may be a third family; it may be a blended family from two previous families. I know from my own experience working as a school counsellor of the sort of problems that come up-not just financial problems but psychological problems and so on as well-because of this increasing tendency to re-establish families. In many ways it is a good thing; it gives stability to children. But it is a difficult process, with the possibility of economic problems, and if we rush into some simplistic solution we will add to those problems.

I think Senator Powell referred to the difficulty sometimes of enforcement in a small town. This is something that has been discussed at some length on the Government's side. There are questions of confidentiality and privacy. If we proceed by acting through the Australian Taxation Office, we have problems of the employer knowing, perhaps for the first time, that the non-custodial parent has left a family without support, and so on. But progress is being made in these matters, and progress is also being made in the process of counselling at the time of marriage breakdown and after marriage breakdown. This Government has greatly increased the resources given to the counselling sections of the Family Court of Australia, and I would remind honourable senators that the 1983 amendments to the Family Law Act were the work of this Government also. They made a great deal of difference in that regard because they allowed for counselling before the point of breakdown as well as afterwards, and they allowed direct access by the public to the counselling services of the court. Those services are being used. This Government has also set up conciliation centres. These are pilots at the moment; but, from what I hear, the conciliation centre in the eastern suburbs of Melbourne has been able to do a great deal before and after breakdown and in the mending and grieving process which often follows.

I would like to refer now briefly to the foreshadowed amendments. I am very pleased that the punitive provision is being dropped from the foreshadowed amendments. I do not need to refer to that one. But in regard to the other amendments, as I read it, the first amendment to section 75 of the principal Act-clause 3 (1) in the amending Bill-seeks to delete the words `but shall determine the proceedings as if there were no such eligibility'. I do not see that that really adds a great deal. Maybe Senator Durack can elucidate that further. I think it is unnecessary. I would like to refer to what Senator Gareth Evans said in this place on 20 February 1986, when he recorded the response of the Attorney-General (Mr Lionel Bowen) to Senator Durack's Bill. I quote from the Hansard of that date:

Sub-clause 3 (1) of the Bill proposes to add two new sub-sections to section 75 of the Family Law Act. The intended effect of proposed sub-section 75 (3) seems to be to require the court awarding maintenance to disregard the existence of possible social security benefits. The Government is firmly of the view expressed by other speakers that primary responsibility for the support of children should rest with parents of the children. Nevertheless, it believes that the approach taken by proposed sub-section 75 (3) is too simplistic and may create great hardships where there are not the financial resources to allow total support of two family units.

Decisions of the Family Court of Australia already hold that only where financial resources are inadequate should social security be considered.

We all know that that has been variously interpreted by Family Court judges. Senator Evans continued:

The Bill also proposes to add sub-section 75 (4) which purports to deal with priorities as between the needs of the party to or a child of a marriage, on the one hand, and responsibilities assumed since that marriage, on the other. The court is directed to give `such priority as is just and reasonable in all the circumstances'. This may amount to none at all or to a negative priority. No guidelines are given to determine the priority. Anything that could be encompassed by the new sub-section will already be considered under other provisions of sub-section 75 (2), including paragraph (a) which reads:

. . . any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

Clause 4 of the Bill amends section 87 of the Act by excluding arrangements for child maintenance from court-approved maintenance agreements. It would, in the Government's view be a very drastic step to remove these arrangements from the scope of section 87 agreements. These agreements are a useful means for parties to finalise their affairs on marital breakdown without the trauma of continuing court proceedings. It is conceded that some of these agreements may have been structured to maximise social security receipt. Nevertheless, the Family Court-

he cited the case-

held that, in considering whether a maintenance agreement is proper, the Court should also consider the interests of the community at large.

I think that that has become more relevant in the time since that was said. I was referring before to the community consultations that took place-very wide consultations-in the period leading up to the presentation of the statement by the Minister for Social Security (Mr Howe) in both Houses earlier this week. I would like to read the list of organisations-it is probably not an exhaustive list; it contains the names of the ones we have been able to assemble-which have taken part in those consultations. In the main, they are the very large organisations--


Senator Durack —Mr Deputy President, I raise a point of order. A Bill that deals with fairly specific matters is before the Senate, which Senator Zakharov has been addressing. Now she wants to read out-obviously to waste time, because that is what the Government's tactic is-a list of organisations which made representations to the Government about some scheme the Government is contemplating. It is not of relevance to the actual terms of this Bill.


Senator Zakharov —On the point of order, Mr Deputy President: A number of statements have been made today and before this time about the lack of work that the Government has done in the meantime, the lack of consultation, and so on. I am merely trying to substantiate that the Government has consulted extensively and to give some idea of the scope of that consultation.


The DEPUTY PRESIDENT —Senator Zakharov, you may proceed, but do not spend too long in that direction.


Senator ZAKHAROV —No, I will try to read the list quickly. It is a lengthy list. I think it is important that it be read, because it shows the breadth of consultation. It reads: The Australian Council of Social Service; the Australian Council of Trade Unions; the Australian Law Reform Commission; the Australian Taxpayers Association, which one would think would be very concerned; the Brotherhood of St Laurence-and I had the pleasure of taking part in some of those consultations; business organisations such as the Confederation of Australian Industry, the Business Council of Australia and the Council of Small Business; the Catholic Social Welfare Commission; the Council for the Single Mother and Her Child; Family Court judges, registrars and counsellors organisations; the Income Security and Taxation Advocacy Project; the Institute of Family Studies; the Social Welfare Research Centre; the Law Council of Australia; men's organisations, including the Lone Fathers Organisation and Fathers of Australia; the Mission of St James and St John; the National Consultative Council on Social Welfare; the National Women's Consultative Council, and numerous women's organisations which are represented by it; the South Australian Maintenance Agency, which of course is the agency to which people are looking as a possible model; national women's organisations, such as the Women's Electoral Lobby, the National Council of Women, and Parents Without Partners; State governments; family conciliation centres; and 312 other written submissions and letters were received in this consultation. So there has been no barrier at any time to any group taking part in this process. I add that some of the people with whom I have taken part in discussion have been State members of the Parliamentary Liberal Party who have also been supportive of what we have been doing and have recognised what we are doing.

I would like to refer to some of the other aspects that have been mentioned by previous speakers. I refer to a number of aspects of Senator Durack's second reading speech, because I think part of it at least illuminates an attitude which is unfortunately current in the community and has, I believe, impeded the pursuit of justice and equity in this area. Senator Durack said:

The availability of a meagre but steady income under the supporting parents benefit is an important factor which gives the supporting parent a reliable income and relieves the recipient of the hassle of chasing a bad payer.

He is referring here to the number of maintenance orders which are disregarded. Receivers of the supporting parents benefit may regard it as a reliable income, but they would hardly regard it as an adequate income. Many of those people would much rather be getting proper maintenance for their children from the non-custodial parent who ought to be responsible for them. Senator Durack continued:

There has also no doubt been an erosion of moral and social values whereby many people have decided to repudiate such responsibility.

I do not know what evidence, if any, he has for saying that. To my knowledge there have always been non-custodial parents who have rejected their responsibilities. In fact, I have worked in areas of Australia where large numbers of the work force-and I am going back 40 years now, so it is not a recent matter or anything to do with the Family Law Act-were in those isolated areas simply to escape their responsibilities of this sort. So I do not think it is anything new and I do not think we can recognise any sudden moral decline, for whatever reason that Senator Durack may think that that is taking place. He also said:

The present Government is particularly delinquent because although the problem was identified several years ago it has taken no steps to rectify it.

I believe I have answered that point, in spite of Senator Durack's attempt to stop me reading the list of organisations which had been involved. Senator Durack continued:

Soon after he became Attorney-General, Senator Gareth Evans set up an inquiry into this question and obtained a departmental report but since then nothing has transpired.

I realise that this speech was made a year ago, but certainly a great deal had transpired by that stage. Senator Durack referred to agreements under section 87 as being the ones favoured by the better off sections of the community for maintenance avoidance purposes. I imagine that he was referring to settlements about property and so on. The quotation I read from Senator Evans's remarks earlier recognised that that often has been the case, but particularly in the case of the family home it is often very important that that settlement takes place because it allows some stability to the children. I have seen, in my work in schools, families in which children not only have been uprooted from their houses, having lost one of their parents, but have had to move, change schools and lose their friends because the family cannot afford another house in the same area. This has a deleterious effect upon those children. I trust that when the final decisions are made provisions will be made by the court for an arrangement or part arrangement relating to the family home.

I wish to deal with some of the statements that have been made in this debate and earlier. Senator Reid implied that alternative arrangements cannot be made-in other words, that a non-custodial parent cannot arrange to make a transfer of money or of property in some other way as part of the maintenance arrangements. I have been heavily involved in all the discussions that have taken place in developing the Government's scheme, and I do not believe that this is so. We must remember that we are now at stage one in a staged process with community discussions continuing between stages, so a great deal is not fixed, but there is no basis for saying that alternative arrangements cannot be made, as they are made now.


Senator Reid —I did not say that they could not be made. I said that they cannot be made as a means of getting into social security.


Senator ZAKHAROV —That point is taken. There were several interjections about the Government doing something after four years. As I have already said, we have done a great deal in those four years, including making major amendments to the Family Law Act. In the same vein, I do not know whether Senator Durack heard or would be pleased by Senator Powell's reference to him as a burr under the saddle of the Government. Again, I do not think it is realistic and it certainly is not an accurate description of Senator Durack. I reiterate that the discussion was well advanced before Senator Durack introduced his Bill, and the last four years have been well spent.


Senator Durack —I introduced the same amendment in 1983 and you voted against it then. Do you remember that?


Senator ZAKHAROV —Yes, in that context. I am sure that Senator Durack does not want to be diverted into another argument, and I am certainly not prepared to be so diverted. There have also been some suggestions that the main purpose of the Government move is to get down the welfare bill as a priority. The Government's priority is to meet the needs of children in poverty. Certainly no one would object to getting that bill down if the money is to be redistributed to other people in need at times of economic stringency, but that is not the purpose of the Government's moves. I am disappointed in some of the community groups which are making that allegation. They should know better because they have been involved in this process for a number of years.

I refer with approbation to the contribution to the debate when the matter was before the chamber on a previous occasion by Senator Giles who said that the amendments in Senator Durack's Bill introduced an unacceptable rigidity into the decision making process of the Family Court. I agree wholeheartedly with that. The Government's present proposals, on the other hand, are flexible. Some people see it as punitive to make a non-custodial parent responsible for their share of the child's upkeep. I do not regard it that way, but some groups are saying `I am not prepared to pay' or, worse still, wanting some trade-off for access, which is an entirely separate question and which is being addressed separately by the Government.

Senator Chaney said that we cannot let this matter roll on, and he repeated the four-year claim. Well, it has not rolled on and I hope that I have dealt with that point. We have not let it roll on; we have rolled it on. We have been the impetus. We have made use of the maintenance report that is mentioned and all the other material which has been produced, including reports which have come from non-government organisations, government agencies such as the Family Law Institute, as well as the magnificent work which has been done by the social security review team.

I do not have a great deal of time left but I want to stress some of the points made by the Minister in his statement on the reform of child support. He pointed out:

More than seventy per cent of parents, no longer living with their children, simply don't pay regular maintenance.

Inadequate support by non-custodial parents contributes to the poverty of children living in Australia's sole parent families-it also contributes to the heavy demand on our social security system-

And on the Budget. I would like to comment there because I wonder how many people in this chamber now, or when the chamber is full even, really understand the meaning of poverty; I wonder whether they understand what it means to see one's children go without things that other children have. I wonder whether they have seen children suffering from, not starvation, but marginal malnutrition; children whose teeth cannot be attended to, children who are not taken to the doctor perhaps because the doctor charges more than the Medicare rebate and the parents cannot afford to pay the bill. I wonder whether members are aware that some children do not know what it is to have new clothes and, even more commonly, parents who go without. I am not just referring to parents who find themselves in this situation, as other people are living in poverty as well, but a large number of people living in poverty are single parents. There are parents who go without and who suffer the consequences themselves so that their children may be adequately clothed, fed and housed. Many live in situations where there is no money for basic requisites, let alone things that most people take for granted, such as outings. A trip on the train has to be planned for and saved for in advance, even a trip into the city. Holidays and the purchase of new clothes become impossible dreams. I myself have had some experience, but not to this extent, of knowing what it is like to live on credit, to have to ask the grocer if one can pay the bill at the end of the week and to have to clothe one's children solely out of op-shops.

I am pleased that the punitive aspects, which were originally in Senator Durack's Bill, are the subject of foreshadowed amendments. Experience has shown that the punitive approach has not been effective anyway and has often been counter-productive. It has led to the non-custodial parent absconding or to great reluctance by custodial parents to take the matter to court. A husband in jail is providing nothing towards the maintenance of the family, whereas if he is out of jail there is at least a chance that he might pay something, if he can be found. I strongly believe that it is the responsibility of those who produce children to contribute to their upkeep. I think probably that we differ only as to how this should be done. This needs to be impressed on young people before they take part in the activity which may produce children. Certainly that is something I tried to do in my work as a teacher before I came to this place. I sought to make girls and boys aware of their responsibilities if their actions result in children.

I repeat that the Government's motivation is not primarily to reduce government expenditure, although that is a concern. It is primarily about making sure that children do not suffer so badly economically when they clearly often suffer socially and psychologically when their parents separate, when a marriage breaks down or when a de facto relationship ends. I regard this private member's Bill and its amendments as a very simplistic approach to a very complex and sensitive area and I ask the Senate to reject it.