I, too, rise to make some remarks on the Family Law Amendment Bill 2023, and I commend the comments from my colleague Senator Reynolds and, particularly, Senator Scarr, who was on the committee that reviewed this.
Having been in the other place—the House of Representatives—from 2004 to 2007, as well as here in the Senate, whilst much of my work has focused around national security issues, there is no issue that I have dealt with in my time in this place that has more significantly affected people, caused so much financial, mental, emotional and relational pain—often abuse—or caused people to engage out of desperation and hurt with their elected representatives seeking remedy.
I have known Kay Hull well, and the work that she did back in 2003. I came in just at the end of that committee inquiry, but was here during the period where then Attorney-General Ruddock was implementing a lot of the reforms into family law. There is no topic that is more complex because of its interaction with human nature, relationships and emotions than this area, and it is one that has to be dealt with effectively and compassionately, but also in a time frame that makes sure changes that we make actually deliver the outcomes that will improve things.
My experience to date has said that there is no silver bullet.
There is no change that is going to make everything good for everyone overnight, but at least we should be incrementally improving the system that we have.
One of my concerns with this legislation, and one of the reasons that I will be calling on both the government and the crossbench to give serious consideration to the amendments that are being moved by Senator Cash, is that the hearing for this lasted one day.
That’s one day for a topic that, through my time here in the House and in the Senate, there have been extended inquiries giving people the opportunity to not just have their views heard but also, when draft legislation has come forward, have the opportunity to delve into.
Will it be effective and, importantly, will there be unintended consequences? Will this lead to outcomes that actually take us backward, that make the situations for both parents and, particularly, children even worse than they currently are?
I am appalled—it would not be too strong a word to use—that the committee was given only one day to engage with stakeholders, whether they be in the legal profession or otherwise, around this legislation. I think that is a manifestly inadequate period to understand the likely efficacy and the potential for unintended consequences of this. So I encourage people to consider seriously the amendments put forward by Senator Cash—not treating them as a partisan issue but as a genuine attempt to make sure that we keep moving forward and improving legislation, as opposed to potentially going backwards.
There are two areas that I wish to talk about: schedule 1 part 2, which is around the presumption of equal shared parental responsibility; and schedule 2, regarding the enforcement of child-related orders. They are two issues that, through my time—particularly as a member of the House of Representatives—have been raised with me frequently. Certainly, schedule 2—the enforcement of child-related orders—is something that people have continued to bring to my attention because of the great financial, emotional and other impacts on them when those child-related orders are not enforced and there are imbalances of power in the relationship. It’s a problematic area.
Before I go into those in detail, though, I do wish to give some overarching comments about how we, as a society, address this issue. I mentioned that I came in at the end of Kay Hull’s work, and one of the things that led to that review back at that period was the concern about the disappearance of fathers from their children’s lives in the aftermath of separation and divorce. That drove a fair degree of interest. Interestingly, I’ll go to President Obama, who’s not someone I quote often because he comes from a different political view, perhaps, to mine. I’ll quote from a speech that he gave:
Of all the rocks upon which we build our lives, we are reminded today that family is the most important. And we are called to recognize and honor how critical every father is to that foundation. They are teachers and coaches. They are mentors and role models. They are examples of success and the men who constantly push us toward it.
But if we are honest with ourselves, we’ll admit that what too many fathers also are is missing—missing from too many lives and too many homes. They have abandoned their responsibilities, acting like boys instead of men. And the foundations of our families are weaker because of it.
I think that’s a realistic assessment of two things.
One is that there’s a role for both parents, but that both parents have to step up to that role and fulfil it. One of the challenges that we see now with the degree of dysfunction in families is that many young men have not had role models. They have not seen in their own lives an example of what it means to be a father. So one of the things we should be saying as a society is: how do we get alongside and help people to understand how to be a father—in fact, how to be a husband? How do you communicate? How do you relate and have an emotional EQ as well as an IQ, a work ethic and all those other things?
This never comes cheap. But I think it’s worth noting some of the research that highlights the mental health issues, which are doubled for divorced men and women as opposed to those who remain married, and the high, and rising, rate of suicide following marriage breakdown. Divorced women have taken their lives at a rate four times that for married women, while the rate is up to three times for men.
Financially, AMP and NATSEM have highlighted the different impacts after a marriage comes apart. They’ve said that, whether it’s income equity, debt levels or long-term wealth potential from a financial perspective, divorce is a loss-loss outcome.
Why should government care, even if we set apart the fact that we want people to flourish and that we want wellbeing amongst our community? From a purely financial perspective, back in 2004 when I first started to get into this, some of the research that I looked at from the then Department of Family and Community Services indicated that, on average, a marriage breakdown for an average family with two children equalled $352 million each year in additional support by the taxpayer writ large to families who had suffered breakdown.
I notice that in 2014—10 years later—News Corp had done a study, and their assessment was that divorce was costing the economy $14 billion a year. So even from a crass financial perspective, there’s a real incentive for government to work out how we can do better to support people who’ve come together in marriage not to go down the path of seeing that break apart—to find ways to stop that.
There are things that have been tried. During the period when Mr Ruddock was the Attorney-General, I was involved with him in seeking to shape not just the establishment of what was coming out of various reviews—Professor Patrick Parkinson had a large hand in that—but the family relationship centres, which were designed initially to make the process of separating less confrontational, with less angst, to allow people to go their separate ways without that impact on them and their children.
Three of the first areas that eventually became part of their aim was to help couples about to be married to get information on premarriage education; to help families wanting to improve their relationships to get information about family relationship education and other services that can help strengthen relationships; and to help families having relationship difficulties to get information on and referrals to other services to help prevent separation. The rest of it was all the postseparation part. I’m not convinced that was ever funded as well as it could or should have been.
We see examples in other governments, such as in New Zealand, where then finance minister Bill English set up, along with their tax working group and their capital markets working group, a welfare working group in 2008 to do a detailed analysis of why the government was spending large amounts of money to support people through various streams, such as mental health, education, the prison system et cetera.
Family breakdown was a key precursor to much of that expenditure, and they put in place some interventions.
What it says to me is that there are some ways in which it is worth it for the government to spend money upfront to help people to appreciate the work of people like Gottman, who developed the cascade theory of marital dissolution. He concluded that a lasting marriage results from a couple’s ability to resolve the conflicts that are inevitable in any relationship.
This comes down to two things: (1) having the desire, the motivation, to do it—so understanding why it’s important—and (2) having the tools to do it. I would argue that it is worth it for the Commonwealth to spend money on that.
Very quickly, I will move on to the two parts that are of concern. One is about the presumption of equal shared parenting responsibility. I have looked through the long list of recommendations that came out of the Law Reform Commission’s work on this. They noted that there was a lack of understanding on the part of many people. The expectation of some going into this whole process of separating was that there should be equal time, and that was causing problems. But what we see was that the original presumption was something that was supported by all sides of Australian politics because of the importance of having both parents in the life of a child. I understand that relabelling, and there are various words that have been used.
I look through some of the submissions that were given to the committee and to other processes. Professor Bruce Smyth, for example, stated that there is ‘still a role for law to send out a radiating message that both parents matter, and that children need both their parents to be involved in their lives after separation’. A number of witnesses highlighted that, in attempting to implement the recommendation of the ALRC, these changes, rather than rebadging the presumption, basically remove it.
There is so much evidence here in Australia and overseas that this presumption is in a child’s best interests, all things being equal—obviously not in situations of violence et cetera, but, even in the laws that were put in place under the Howard government, things like domestic violence and the potential for harm to a child were grounds to not have that equality. So, whilst I’m supportive of the view that we should refine expectations about equal responsibility, which doesn’t necessarily mean equal time, what this legislation does is to overreach and go too far.
There are many submissions—including from Professor Smyth, the Family Law Practitioners Association of Western Australia, the Hunter Valley Family Law Practitioners Association and the Family Law Practitioners Association of Queensland—highlighting in reasonably lengthy ways their concerns with the fact that this presumption is being removed, and that is something that I do not support.
Schedule 2 is about the enforcement of child related orders. This is a complex area because of the interaction between Commonwealth and state jurisdictions, but it is something that we need to act on. Schedule 2, I am not convinced would do it.
Even the ACT Bar Association has given evidence again in the committee report highlighting some concerns around this and their conclusion was that, rather than simplifying it, they’ve actually made it a different complex mess. Those two areas are of particular concern of mine, having dealt with them over a range of years. I implore the Senate to consider the amendments by Senator Cash.