Senate

Second Reading Speech

Senator Patterson (Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs and Parliamentary Secretary to the Minister for Foreign Affairs)

I table a revised explanatory memorandum relating to the Family Law Amendment Bill 2000 and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows

Family Law Amendment Bill 2000

The Family Law Amendment Bill 2000 gives effect to a number of the Government's election promises on families and family law, marking it as an important step in the process to reform the Family Law Act 1975.

The Government recognises the extraordinary stress that is placed on people experiencing relationship difficulties and is committed to assisting people to maintain stable, healthy relationships. When people do experience relationship difficulties, however, the government is committed to assisting them to resolve those difficulties with a minimum of stress and as fairly as possible.

The bill will help separating couples achieve greater financial equity and certainty by implementing a number of recommendations contained in the 1992 Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975.

The bill has two broad aims.

The first aim, given effect by amendments in Schedule 1 of the bill, is to streamline and enhance the enforcement of parenting orders by the introduction of a new three stage parenting order compliance regime.

The second aim is given effect by amendments in Schedules 2 and 3, which provide for the introduction of binding financial agreements and enable the commencement of private arbitration of disputes about property. The object of the amendments in Schedules 2 and 3 is to provide greater choice for parties in property settlements and to provide a more efficient and less costly means of dispute resolution in property matters than that which is currently available through the Family Court.

Turning to the amendments in Schedule 1, the bill will address an area of significant public concern, the enforcement of parenting orders.

Under the current law, in many cases, contact order compliance, in particular, is seen as being optional. When the Court makes an order about the parenting of a child, it must be observed. However, Family Court orders are different to other court orders in two important respects. First, they must balance the emotional distress that often accompanies relationship breakdown. Second, the opportunity for the breach of a parenting order providing for contact comes about on each occasion of contact.

Because of the unique nature of parenting orders, a new three stage parenting compliance regime will be introduced covering prevention, remedial measures and ultimately sanctions. The three-tiered approach in this bill was recommended by the Family Law Council in June 1998. That recommendation followed the Council's detailed study of enforcement cases and broad ranging community consultation on alternatives for improving compliance with parenting orders, particularly contact orders.

The Government is committed to encouraging parents who separate to consider carefully the needs of their children and to put in place workable parenting arrangements that promote the best interests of their children. The first stage of the parenting compliance regime will therefore be preventative. The aim of the first stage will be to ensure that parents are aware of their parenting obligations, the responsibilities imposed by any orders and the consequences if they fail to observe the orders. The bill will achieve this by requiring courts to include in parenting orders a range of standard clauses to this effect.

This stage is also intended to improve the communication between parents. The court or a legal practitioner who is representing a party will therefore supplement the information in the standard clauses by further explaining the effect of the parenting order. This information will be required to be given in language that the person receiving the explanation is likely to understand. People who make registrable parenting plans will also be able to obtain an explanation of what they are agreeing to and the consequences of failure to comply with the agreement.

The second stage of the parenting compliance regime will contain remedial measures.

When a breach of an order occurs for the first time, the court will be able to send parents to a range of post-separation parenting programs as well as making an order to compensate for lost contact. The aim of the educative programs will be to help parents resolve issues of conflict about the parenting of their children, and to this end, a court will be able to order both the parent who contravened the parenting order and the other parent to attend a program. Parents will be required to attend such programs provided that they are available within a reasonable distance from the person's place of residence or work. The Attorney-General will compile, each year, a list of the programs that will satisfy the requirements.

When the court requires a person to attend one of the listed programs, the court will also be required to provide information to the program provider, including the details of the person ordered to attend. In some cases, the program provider will be required to notify the court of the person's suitability for attendance and any absence. These cases will be where the person has failed to attend the program as ordered, or the person has been deemed unsuitable to attend, or to continue to attend, the program. When the court is notified of a failure in the program, the court may then make further orders concerning the person's attendance at a program.

The third stage of the parenting compliance regime will contain sanctions for serious initial breaches or subsequent breaches. At this stage the court will have a discretion on a second or subsequent breach to order the party to attend another post-separation parenting program if the court is satisfied that it is more appropriate for that contravention to be dealt with under stage 2.

Where there are persistent breaches, or where the first breach is particularly serious, the court will be able to impose a range of sanctions including community service orders, fines, bonds or, ultimately, imprisonment.

For the court to impose one of the range of sanctions available in the third stage of the parenting compliance regime, the person must previously have been ordered to attend a post-separation parenting program or, alternatively, the court must have ordered compensatory contact. These requirements will not apply if a post-separation parenting program was not reasonably available or the court considered that it was not appropriate for the person to attend such a program or considered that it was not appropriate to order compensatory contact.

Community service orders will be a valuable alternative sentencing option under the new three tiered parenting compliance regime. Such orders offer a valuable alternative sentencing option for the court to consider. The bill includes imprisonment as a sanction available for the non-payment of court ordered maintenance where the contravention was intentional or fraudulent. The Joint Select Committee recommended, in 1992, that imprisonment should be an option in such cases. The bill makes it clear that imprisonment is not available in respect of child support assessments under the Child Support (Assessment) Act 1989.

The bill defines the meaning of contravene an order with the emphasis being on the intent of the parent in failing to comply with the parenting order, or that of another person who assists a parent to contravene a parenting order.

The changes to the parenting compliance regime for children's matters will apply to orders made before as well as after the commencement of the bill, and will apply regardless of whether the contravention occurred before or after the commencement.

I now turn to the amendments contained in Schedule 2 to the bill. These amendments will enable binding financial agreements to be made before or during marriage, or after separation.

Currently, under the Act, people can make pre-nuptial agreements about their property. However, the use of these agreements has been limited because the agreements are not binding. Despite the existence of an agreement, the court has been able to exercise its discretion over any of the property dealt with in the agreement.

The settlement of the financial affairs following separation has remained basically unchanged since the Act commenced in 1976. However, the Australian community - and its attitude to marriage - has undergone substantial change during that time. The changes in this bill will attempt to bring the Act into line with prevailing community attitudes and needs.

Binding financial agreements will be of particular benefit to people who are entering subsequent marriages as well as to people on the land and those who own family businesses.

The aim of introducing binding financial agreements is to encourage people to agree about how their matrimonial property should be distributed in the event of, or following, separation. Agreements will allow people to have greater control and choice over their own affairs in the event of marital breakdown. Financial agreements will be able to deal with all or any of the parties' property and financial resources and also maintenance. An agreement may cover how property would be divided or how maintenance would be paid. Particular assets, such as rural properties, would be able to be preserved.

People will be encouraged, but not required, to make financial agreements. For these agreements to be binding, each party will be required to obtain independent legal advice before concluding their agreement. The provider of the advice will certify, on the agreement, that the advice has been given. Requiring parties to obtain independent advice will mean that couples will be aware of the implications of the agreements that they are entering into and will not unknowingly enter an agreement that is not in their best interests.

Because parties will have obtained prior advice, the court will only be able to set aside an agreement in certain limited circumstances reflecting the contractual nature of the agreement. For example where there is fraud (including non-disclosure of a material matter), where the agreement is void, voidable or unenforceable, where it is impractical to enforce the agreement and, most importantly, where there are material changes in circumstances relating to the care, welfare and development of a child such that a party to the agreement would suffer hardship.

Schedule 3 of the bill contains provisions to increase the range of non-judicial dispute resolution services.

The Government has already increased family and relationship counselling and mediation by providing additional primary dispute resolution services through community based counselling and mediation services and through conferencing in legal aid commissions to assist families to resolve disputes. The Government's aim is to ensure that wherever possible, where people cannot resolve their relationship difficulties, they are able to avoid costly legal fees and emotionally debilitating court proceedings and resolve their marital, separation and parenting disputes sensibly and respectfully.

The amendments in Schedule 3 to the bill also pro-mote these aims by introducing a workable scheme of private arbitration that will allow quali-fied arbitrators to settle disputes and make en-forceable decisions about the distribution of prop-erty on marriage breakdown. The amendments will mean that if people are unable to agree about property on marriage breakdown, they will be able to use the services of arbitrators rather than needing to resort to a court to resolve the dis-pute. Therefore, people who utilise the services of arbitrators will have access to a less expensive and quicker option to resolve their dispute.

Where the parties choose, some aspects of their property may be arbitrated: for example, parties may choose to have complex issues, such superannuation, arbitrated, with the remainder being settled either by financial agreement or by court order. Even where proceedings have commenced in the Family Court, the court may, with the consent of the parties involved, order that particular issues be arbitrated. Similarly, the bill will permit an arbitrator, prior to making their arbitral award, to refer a question of law to a single judge.

Decisions of the arbitrator will be subject to review on questions of law by the Family Court and the Federal Magistrates Service. Confining the review of arbitral awards to questions of law will ensure the finality of arbitral resolutions.

Arbitrators, in order to be eligible to perform arbit-rations under the Act, will be required to satisfy prescribed qualifications and experience crit-eria. People will be able to choose an arbitrator easily from a list of arbitrators who meet the req-uired criteria maintained by the Law Council of Australia.

Finally, the bill will make a number of other amendments to the Act designed to assist the smooth functioning of the court, to facilitate transfer of proceedings between courts, to make minor changes to child maintenance orders, to extend the application of location and recovery provisions of the Act to international child abduction cases, to limit the application of the separate representative provisions in international child abduction cases and to provide the court with broader powers to make Rules of Court about enforcing property and financial orders.

These changes are intended to benefit persons involved in family law matters. This bill will not only improve the procedural efficiency with which matters can be dealt with by the courts, it will also open up a new range of choices for separating parties to resolve their disputes with dignity. This bill is an important step in minimising the distress and trauma that arises when families break down.

Debate (on motion by Senator Denman) adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.