Second Reading Speech
Senator SANTORO (Queensland-Minister for Ageing)
I move:
That this bill be now read a second time.
I table a revised explanatory memorandum relating to the bill and seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The speech read as follows-
The Family Law Amendment (Shared Parental Responsibility) Bill 2005 represents the most significant changes to the Family Law Act 1975 since its inception 30 years ago.
Family breakdown is not easy for anyone. It is traumatic for those involved - parents, extended family, friends and most importantly, children. It has an impact on others in the community. It is a complex area of policy for Government, and one which provokes strong feelings amongst many Australians.
However, this Government is about making hard, but well considered, decisions in key areas of policy.
This Government is committed to three major changes to how the Government helps people deal with family breakdown. The first is the package of almost $400 million over four years which was outlined in the Budget, of new community services to help reduce conflict in families; the second is the Government's proposals to reform the child support system, and the third is these changes to the Family Law Act that I introduce today.
Each of these significant changes promotes shared or co-operative parenting after separation.
This bill is the culmination of many years work by a large number of people. I would like to begin by acknowledging my Parliamentary colleagues from both sides of politics who have been involved in the development of this legislation. I thank those from the original House of Representatives Standing Committee on Family and Community Affairs who worked so diligently on the Every picture tells a story report in 2003. I specifically thank the Chair of that Committee, Mrs Kay Hull MP, Member for Riverina, whose hard work and commitment over a number of years has enabled us to be here today.
I also thank the members of the House of Representatives Standing Committee on Legal and Constitutional Affairs, and particularly the Chair, the Hon Peter Slipper MP, Member for Fisher, for their speedy work in examining the exposure draft of the legislation and for their valuable contribution and insight into the final Bill.
When the Attorney-General introduced The bill into the House of Representatives, he tabled the government response to the Committee. The government accepted the majority of the Committee's recommendations and amended The bill accordingly. One recommendation of the Committee that the government accepts in principle, but which does not appear in this bill, is recommendation 8 relating to relocation decisions. This issue is being considered by the Family Law Council. The government will consider making further amendments to the Act in line with their advice and the Committee's recommendation once the advice is completed later this year.
I also thank the members of the Senate Legal and Constitutional Legislation Committee, and particularly the Chair, Senator Marise Payne, Senator for New South Wales, for their recent work in examining The bill. The Government will be moving a number of amendments as a result of the Senate Committee's recommendations.
I would also like to acknowledge all the members of the public who have contributed to the extensive consultative processes that preceded this bill. This bill is the result of listening to people's views on how the family law system can deliver better outcomes for Australian parents and children through a number of consultation processes. The Every picture tells a story Committee sought input into the Every picture tells a story report; the Government released a discussion paper A new family law system: implementation of reforms for comment; and the Legal and Constitutional Affairs Committee sought submissions on the exposure draft of the legislation. Members of the Government have also personally received thousands of letters - from grandparents, mothers, fathers and many others affected by our family law system - and met with hundreds of people and listened to their views. These consultations have greatly assisted the Government in shaping the final Bill.
The development of The bill has been a lengthy process, due to the tremendous amount of consultation that has taken place and the complexities of the issues that are raised. I thank all for their patience and commitment in allowing the Government to fully consider the important issues that are contained within The bill.
More than one million Australian children have a parent living elsewhere. The children want the same things as any other children - to grow up in a safe environment with the love and support of both parents. They do not want their parents fighting in court.
Unfortunately, one in four children never sees one of their parents or only sees them once a year. Too many parents fight in the courts for years, wasting money they should be using to raise their children.
The Government wants to change the culture of family breakdown from litigation to cooperation.
The Government believes that, except in extreme cases such as those involving violence or abuse, the right of children to know both their parents should be recognised and respected. Where possible, the Government wishes to encourage parents to continue to take shared responsibility for their children after they separate. Importantly, The bill also has an increased focus on protecting children from family violence and child abuse.
It is important to emphasise that the paramount consideration for the court will continue to be the best interests of the child. The right of children to know both their parents and to be protected from harm will be the primary factors when deciding the best interests of the child.
Amendments contained in Schedule 1 of The bill support and promote a cooperative approach to parenting and advance the Government's long-standing policy of encouraging people to take responsibility for resolving disputes themselves, in a non adversarial manner.
The bill provides for a presumption of equal shared parental responsibility. This means that both parents have an equal role in making decisions about major long-term issues for the benefit of their children.
Where the presumption applies, the court will be required to consider children spending equal time with both parents. This only applies where it is reasonably practicable and is in the best interests of the child. Equal time works for some families. But if it isn't inappropriate, the court must consider an arrangement for substantial and significant time with both parents. This means more than just weekends and holidays, it means doing the day to day things with children - tucking them into bed, picking them up after school, helping them with homework. It also means a mix of nights and days with children.
The Court will also take into account whether parents fail to fulfil their major responsibilities, such as not paying child support or not turning up when they are obliged to hand the children over.
The bill contains changes to better recognise the interests of children in spending time with grandparents and other relatives, who also play an important role in raising children.
The bill will address concerns about the existing definition of family violence to introduce an 'objective test' in relation to an apprehension or fear of violence. While there is no requirement for reasonableness in relation to violence that has actually occurred, an apprehension or fear of violence must be reasonable. This does not mean that any level of violence is acceptable. Violence is a crime and will not be tolerated.
I should also note that the Government is currently taking steps to ensure that allegations of violence and abuse raised in family law proceedings are processed quickly, fairly and properly. The Family Law Violence Strategy will complement these legislative changes by reviewing the underlying processes through which allegations are investigated and dealt with.
To promote agreements outside the court system, The bill will require people to attend family dispute resolution and make a genuine effort to resolve their dispute before applying for a parenting order. This requirement does not apply where there is family violence or abuse.
Breaches of court orders are a major source of conflict and distress to all parties involved. Schedule 2 of The bill strengthens the existing enforcement regime in the Family Law Act by giving the courts a wider range of powers to deal with people who breach contact orders through the ability to impose cost orders, bonds, 'make up' time and compensation.
The Government acknowledges that adversarial processes tend to escalate and prolong conflict. For those parenting issues that do need to proceed to court, the amendments in Schedule 3 of The bill contain changes to court procedures to make the process less adversarial.
Schedule 4 of The bill supports the Government's policy of ensuring that separating and divorcing parents have access to quality counselling and dispute resolution services without the need to go to court.
Schedule 5 of The bill implements recommendations of the Family Law Council to clarify the role of independent children's lawyers as best interest advocates.
Schedule 6 of The bill makes the relationship between parenting orders and family violence orders clearer and easier to understand. These amendments are also based on advice provided to me by the Family Law Council.
Schedule 8 removes the terms 'residence' and 'contact' to emphasise on the more family-focussed term of 'parenting orders'.
Schedule 10 adds a new Part XIVB to the Act which deals with ineffective orders made without power by officers of State courts of summary jurisdiction, in the purported exercise of such jurisdiction. The effect of the provisions is that the rights and liabilities of persons affected by such an ineffective order are to be the same as if such order had been made by the relevant court in the exercise of its jurisdiction under the Act.
The Government is intent upon making cultural change to the way that disputes upon family relationship breakdown are resolved. With these reforms to the law and the new family law system, the Government wants to make sure as many children as possible grow up in a safe environment, without conflict and with the love and support of both parents.
Full details of the measures contained in this bill are contained in the Explanatory Memorandum to The bill.
I commend The bill to the Senate.