Mr McCLELLAND (Barton) (6.13 p.m.)—As the Attorney-General indicated, the Family Law Amendment Bill 2005 is very similar to the Family Law Amendment Bill 2004, which was introduced in the last parliament. That bill was examined by the Senate Legal and Constitutional Legislation Committee, which made a series of very useful recommendations. Labor is pleased to see that the government has clearly taken on board many of those recommendations in the preparation of the new bill. This has been one of many examples of the Senate committee process facilitating constructive bipartisan work on important policy issues.

As with the last bill, Labor welcomes this bill as a positive contribution to improving the existing Family Law Act. This is an omnibus bill dealing with amendments in 16 parts. For the most part this bill is non-controversial. Many are technical changes that will ease practical difficulties faced by the courts and court users. Part 10 deals with terminology. This may seem trivial, but in fact it is very important that the Family Law Act makes use of plain English. This is, as we note, an area of law that touches more people than almost any other. It is also an area where, as a result of economic circumstances, there are a substantial number of self-represented litigants. If ever there was a case for making an effort to clean up arcane language in our statutes, it is in this act and we commend the government for that.

Part 5 would extend the range of matters that can be dealt with through private arbitration. This creates a welcome new pathway for certain cases that do not require the expense and delay of litigation but cannot be resolved through mediation alone. Part 16 cleans up a gap in the recently passed Bankruptcy and Family Law Legislation Amendment Bill to ensure that the Family Court of Western Australia has the same jurisdiction as the Family Court of Australia in the area of crossover between family law and bankruptcy law.

There are some parts of the bill that are controversial, and these have been the subject of amendments in the other place. The most important is part 14. This would allow claims for the retrospective recovery of maintenance by a person who finds out later that they are not the child’s biological parent. Labor supports the intention of this provision. As I will note shortly, it would have limited application, but we have serious reservations about the sorts of outcomes it could produce if applied too rigidly.

In most instances, we are talking here about cases where a mistake has been made as opposed to deliberate deception. That is, we are talking about a case where one person was thought to be the father, and a maintenance order was made requiring them to pay maintenance to the mother to support the child. It is a situation where everyone has shared in the mistaken belief: the mother, the purported father and even the court. The question is really about who should bear the cost of the mistake. A good argument can be made for both sides. The man can rightly say that the maintenance order should never have made and that he should never have been required to pay for a child that is not his. But the mother could also argue convincingly that she is incapable of paying all the money back while continuing to support herself and her child or other children in circumstances where a genuine mistake occurred. The Family Court, of course, cannot be required to force a mother and her children into poverty—and should not be required to do so—to correct an honest mistake.

Labor thinks there is only one fair way to deal with this dilemma, and that is to ensure that there is sufficient judicial discretion to have regard to the entirety of circumstances. In short, every case could be different. In some cases mothers may well be doing it tough, and recovery of the full amount could be disastrous for them and their children. In other cases, the mother might have ended up in a new relationship or in secure employment whereas the purported father may have struggled to find the money to pay the maintenance every fortnight. In some cases it will have been an honest mistake; in others a court would regard seriously circumstances of deliberate deception. In some cases the man will have acted quickly upon finding out that he is not the biological father; in others he may have left it for many years, with the result that recovery will be all the more onerous for the mother. We cannot predict all the permutations that will arise and devise a formula that is fair in all circumstances. We need to trust the authority and wisdom of the courts to closely examine each case and make an appropriate order in the circumstances. For this reason, Labor has been anxious to ensure the bill provides the courts with adequate discretion over the amount that is recovered and how it is to be paid. In the Senate, Labor supported an amendment that would have that effect.

It is also important to ensure that, where a mother has been required to repay maintenance under these provisions, she is able, in turn, to recover maintenance from the actual biological father of the child. It would hardly be fair if a mother could be liable to retrospectively repay maintenance when the biological father cannot himself be found accountable. Moreover, in many cases the mother will have forgone other income in reliance on the maintenance. In particular, she will have received less in social security benefits. This makes it all the more important that the mother have a right to retrospectively claim maintenance from the actual father.

Labor raised this concern with the Attorney-General’s office and we were advised that the Family Law Act already provides the court with the power to award backdated maintenance. We received advice from the Attorney-General’s adviser which I will quote for the record and perhaps to assist in some way in the future interpretation of the legislation. The adviser replied:

We are satisfied with this explanation. It is the case that section 66G provides a wide discretion for the court to make orders for maintenance, and nothing seems to prevent them making backdated or retrospective orders if that is appropriate. As I said, this goes a long way to easing the concerns that Labor had with this particular provision.

I should note here also that this provision does not have as profound an effect as I flagged earlier—to the extent that it is already the case that retrospective repayment of maintenance can be ordered by a court where the maintenance has been paid under the administrative assessment scheme of the Child Support (Assessment) Act, in particular under section 143 of that act. This bill would affect only those cases where the maintenance order has been made under the Family Law Act. We are advised by the Attorney-General’s office that only around 2.8 per cent of child support liabilities currently administered by the Child Support Agency arise under Family Law Act maintenance orders—and that figure includes some spousal maintenance orders that would not be affected by this amendment. We are talking about a very small minority of cases that could be affected by this bill. Most of the cases that would be affected by the change are those where the maintenance order was made before 1989. This means that not only does the bill affect a small minority of cases of mistaken paternity but that that minority is clearly defined and ever shrinking.

As noted, it is desirable to bring the regime under the Family Law Act into accord with the Child Support (Assessment) Act. Having considered these issues, Labor are inclined to support a change to the Family Law Act that would ensure mistaken paternity cases are dealt with under that act as they are under the child support act. However, where we disagree with the government is on the words used to obtain that objective. We therefore supported the amendment in the Senate because it brings the language of the Family Law Act closer to that of the child support act. In doing so, the court has been given a greater discretion to ensure that mistaken paternity can be dealt with in the manner most just and equitable in the circumstances. In this way, it is an amendment which has improved the bill.

The other part of the bill that might be controversial is part 1, concerning the parenting compliance regime. The provision in this part would do two things: provide that the court can order parents to participate in counselling or parenting programs before making orders in enforcement proceedings; and provide the court with the power to amend parenting orders where enforcement proceedings have been brought but either no contravention was found or there was a reasonable excuse for the contravention.

With respect to the first of these, it is already possible for the court to order a couple to participate in counselling or parenting programs in other types of proceedings. This change is extending that power to enforcement proceedings. This is a positive move, as counselling and parenting programs have proven very successful at getting to and resolving the issues at the heart of noncompliance. We as members would have seen many instances of constituents coming in and, in one way or another, expressing their grief about serial noncompliance. It is obviously desirable all round if they can be resolved appropriately. Of course, counselling is not appropriate in all cases, especially where there is a history of violence, but we are satisfied that the protections already in the Family Law Act provide sufficient guidance to the court as to when these orders should and should not be made.

The second change in this part allows the court to vary parenting orders in enforcement proceedings, even if no contravention is found or there was a reasonable excuse for contravention. This will allow the court to iron out the practical or other problems in parenting orders that gave rise to the complaint of noncompliance. In some cases it will also allow a reasonable excuse for noncompliance, such as an apprehension of violence, to form the basis for a substantive change to the orders. Currently these changes require separate proceedings for variation of orders. It makes a lot of practical sense for courts to be given the power to deal with variation at the same time as hearing enforcement proceedings.

The National Network of Women’s Legal Services has recommended that this new power be limited to certain cases, such as those where violence is an issue. When this was raised in the Senate committee on the 2004 bill, the Attorney-General’s Department advised the committee that the court’s power would be effectively limited by the considerations the court must always have when making parenting orders: the best interests of the child and the factors set out in section 68F(2). Labor is comfortable with the response provided by the Attorney-General’s Department.

In summary, although this is a useful bill containing several practical reforms to the workings of the family law system, we did have some concerns with part 14 in its original form. But we believe those concerns have substantially been addressed by the amendment that was made in the Senate. Given that amendment, the opposition will be supporting the bill in the House.