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Tuesday, 1 February 1994
Page: 104


Senator McKIERNAN (10.20 p.m.) —by leave—I move:

  That the Senate take note of the document.

This response from the Attorney-General is long awaited and, more importantly, very welcome. The response from the government is a vindication of the very hard work that members of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 put into the development of the report which was presented to the parliament in November 1992.

  There were some concerns—some of which were expressed in this place—about the delay in the response. Concerns about the delay were expressed to me by my constituents in Western Australia, and also from many friends around Australia that we met during the course of this inquiry. I think the content of the government's response justifies the delay.

  It would be fair to say that, in general, the government has accepted the major recommendations of the joint select committee on this very important and crucial issue to so many Australians. It is worth noting that one-third of all marriages and relationships in this country break up at some time or other. That is an indication of the numbers of people who are affected by the federal Family Law Act and by the Western Australia Family Law Act, which runs hand-in-glove with the federal act. The two acts can be taken together on some important issues.

  In making the generalised statement that the government has accepted the report of the joint select committee, I point out that obviously there are areas included in the response where the government has not completely affirmed everything that the committee has recommended. That in itself is a test of the measures that the government has used to examine the recommendations that the committee put to it.

  Some of the delay in the response has been caused by the intrusion of the federal election, and the subsequent delay in the appointment of a person to the position of Attorney-General. But, more importantly, one of the reasons for the delay was the consultative processes that the government undertook in testing the committee's recommendations to see whether they would be workable and worthwhile. Those tests were undertaken by a broad range of interested and informed bodies and gave the lead to the government on what it should do with this report.

  Since the government's response was tabled in the other place in December we have had a chance to read it and digest its contents. It has also been subjected to some very deep analysis in the Australian media. I am pleased to record that, generally speaking, that analysis has come out in favour of the government's response to the committee's report. In his press statement that accompanied the document, the Attorney-General (Mr Lavarch) said on 16 December that the government had initiated the most far-reaching reform processes in family law since the current act's introduction in 1975. I accept that statement. I think what the government is putting forward is ground-breaking. I wish the Attorney-General—together with his parliamentary secretary, the members of cabinet and other persons who will be involved in the process—well in delivering on the promises and the commitments that have been made in this very important document.

  At the conclusion of my short contribution I have a minor criticism to make on aspects of the committee's report and the government's response. However, I briefly want to highlight some of the major features in the government's response. In regard to mediation and other forms of alternate dispute resolution the government has accepted that the system that is in place today is complex, costly and focuses too narrowly on traditional litigation. Obviously, the committee made a number of recommendations in this area, and I am very pleased to see that the government has accepted the main thrust of the committee's recommendations.

  In saying that the system is complex, costly and focuses too narrowly on traditional litigation, we are not saying that it must be like that for every person whose relationship breaks up. There are ways and means in the system as it currently stands whereby people can avoid getting into complexities and the cost of litigation. But unfortunately the system sometimes drags people along. Hopefully, the new systems that will be put in place because of the government's response to the committee's report will inform people early in the piece that there are alternatives to what is happening at the moment.

  The committee was critical of some aspects of the guardianship, custody and access arrangements. It is pleasing to see that the government has accepted the committee's recommendations, particularly on the enforcement of access orders. There is some criticism from a certain section of the community that the law as it currently operates in this country is perhaps biased in favour of one gender as opposed to the other. They are difficult accusations to defend, particularly when we examine the reality of what happens in the courts. We only have to look at the number of mothers of children who block access and who have been penalised because they have forcibly blocked access.

  The equity of the sharing of matrimonial property, farming properties and financial agreements is another area where I welcome the government's response, although I accept that the government has not acceded to all of the committee's recommendations. We did make a specific recommendation on farming properties which the government was not inclined to accept at this stage. I think my colleague Senator Brownhill will have more to say on that. But, overall, our major thrust in getting equality of sharing in the event of a breakdown of a relationship would bring some certainty to the situation.

  The government has taken the committee's recommendation on superannuation even further. I am pleased that that has happened because this is a very complex area and was one of the inadequate areas of the report. The question of property settlement is already in hand through the Standing Committee of Attorneys-General. Access to justice is linked with the mediation and other forms of alternate dispute resolution. Access to justice is very important and I hope it will be delivered.

  My criticism deals with the committee itself as it currently operates. We had a further ongoing reference to look at the funding and administration of the family court. A number of the responses by the government to the recommendations contained in the report concern budgetary measures, and the government says that there cannot be a commitment because of budgetary controls. Some of the responses will be subject to what the committee might come up with in its ongoing investigations. Because of the work that the current committee is doing on the child support scheme, this other reference has been put to one side. I intended to raise the matter had the committee been meeting today. I will be pursuing it at some time in the future. Overall, I thank the Attorney-General and his parliamentary secretary for the work that has been put into the government's response to the report of the committee of which I was very proud to be a member.

  Debate interrupted.