Senate debates

Tuesday, 22 November 2011

Bills

Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011; Second Reading

Debate resumed on the motion:

That this bill be now read a second time.

7:30 pm

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Shadow Minister for the Arts) Share this | | Hansard source

Family law is the one jurisdiction of the federal judicial system to which almost all Australians have some level of exposure at some time in their lives. It is a sad fact of life that virtually every one of us will either have a first-hand experience or have someone—or most likely more than one person—within our family or close circle who will have contact with the Family Court or the Federal Magistrates Court in its family law jurisdiction. It is also a sad fact of life that family law disputes are among the most intractable matters that come before a court, often in a context of extreme personal bitterness and too often occasioned by violence and abuse of the most horrible kind, conduct which, it should be unnecessary to say, is abhorrent to all members of the community.

It is also a fact of life that any attempt to resolve these disputes will often leave both parties feeling aggrieved and, much worse, their children exposed to the fallout and remaining at risk of violence and abuse. Many of the failed relationships that come before the courts have been blighted by mental illness and substance abuse problems, sometimes on both sides, and because judges are human the courts do not always get it right, much as they strive to do so. In disputes involving children, the principal guidance provided by the Family Law Act is that the best interests of the child are the paramount consideration. Just how the best interests of children can be determined, however, is and will always be a vexed question and a matter on which decent people will arrive at different views.

In December 2003 the House of Representatives Standing Committee on Family and Community Affairs tabled a unanimous report entitled Every picture tells a story. The committee was asked to consider, given that the best interests of the child are the paramount consideration, what other factors should be taken into account in deciding the respective time each parent should spend with their children post-separation. The committee, headed by Kay Hull MP, heard evidence from more than 2,000 witnesses over the course of six months. One of its findings, which informed many of its recommendations, was:

We—

that is, the entire committee across party lines—

are convinced that sharing responsibility is the best way to ensure as many children as possible grow up in a caring environment. To share all the important events in a child’s life with both mum and dad, even when families are separated, would be an ideal outcome.

The committee heard heartbreaking evidence of children separated from one of their parents by inflexible Family Court orders which caused anguish to parents and children alike and which had long-term detrimental effects on children. The so-called 'shared parenting laws' which were introduced by Mr Ruddock, the Attorney-General in the Howard government in 2006, were a response to the report. In my view, they were some of the best and most important law reforms for which that great Attorney-General was responsible.

The changes to the family law system included changes to both the legislation and the family relationship service system. The main elements of the legislative changes were: to require parents to attend family dispute resolution before filing a court application, except where there are serious concerns about family violence and child abuse; to place an increased emphasis on the need for both parents to be involved in their children's lives after separation, including the introduction of a presumption of shared parental responsibility; to place greater emphasis on the need to protect children from exposure to family violence and child abuse; and to introduce legislative support for less adversarial court processes in children's matters. This legislative suite included a requirement for the Australian Institute of Family Studies to undertake a large-scale longitudinal evaluation of the effect of the reforms. That evaluation was completed in December 2009, and I will return to its findings in a moment.

The coalition is proud of the Ruddock reforms. The Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 seeks to amend the Family Law Act by including an additional object to give effect to the UN Convention on the Rights of the Child, to which decision-makers may have regard when dealing with children's matters. This will change the definitions of family violence and abuse; strengthen the obligations of lawyers, dispute resolution practitioners, family consultants and family counsellors to prioritise the safety of children; require inquiry and reports on family violence and child abuse in court proceedings; repeal the so-called 'friendly parent provisions'; repeal the provision for cost orders in the case of false family violence allegations; and provide for simpler procedures for the participation of child welfare agencies in family law proceedings. Some of these amendments will have the coalition's support. Others, however, in our view will have the effect of winding back the Ruddock reforms and will therefore be opposed. I will deal with the substantive provisions in turn.

The bill proposes to insert a new section 60CC, which requires the court when determining what is in the child's best interests to give greater weight to the primary consideration that protects the child from harm where there is inconsistency in applying the two primary considerations, the other being the benefit to the child of having a meaningful relationship with both parents. This amendment is unnecessary and gratuitous. The existing section 60CA makes the best interests of the child the paramount consideration. The existing section 60B clearly articulates that a meaningful relationship with a parent is subordinate to the paramount consideration. In purported aid of the objective of this amendment, the bill seeks to add as a further object of part VII of the act that it is to give effect to the UN convention. The explanatory memorandum states that the intention is to confirm in cases of ambiguity that part VII should be interpreted consistently with the convention. However, to the extent to which the act departs from the convention, the act will prevail. The proposed amendment does not corporate the convention into domestic law. Given that the act already gives effect to the principle of the paramountcy of the best interests of the child, the need for that amendment is not clear.

The exposure draft of the bill proposed a definition of family violence that included any behaviour that was subjectively emotionally, psychologically or economically abusive or threatening. Many stakeholders voiced their concern that any instance of marital discord could be tailored to fit the definition. The definition now proposed defines family violence as 'violent, threatening or other behaviour that coerces or controls a member of the person's family or causes the family member to be fearful.' It differs from the existing definition in that it imposes a subjective test. The definition in the existing act requires a reasonable fear for the family member's wellbeing or safety.

The new definition attempts to qualify its subjectivity by incorporating a list of examples of behaviour, which includes assault, repeated derogatory taunts, damage to property and other unreasonable or criminal behaviour. However, it is an open question whether the list of examples is sufficient to frame and limit the subjectivity of the definition. There is no doubt that any of the behaviours listed would cause a person to be fearful; however, they would also give rise to a reasonable fear for a person's wellbeing or safety under the existing test. The problem with a subjective test is that a person seeking to demonstrate that another person is violent need only state that he or she feared controlling or coercive conduct. The state of mind need not be reasonable. The consequences of a finding of violence can be drastic and permanent. It is not appropriate to divert a court from inquiry as to whether a fear alleged to exist is well founded. Accordingly, the coalition will press for the retention of the objective test in the act.

The AIFS evaluation—that is, the longitudinal study to which I referred a few moments ago—found that the legislative changes introduced as part of the 2006 reforms placed greater emphasis on the need to protect children from harm and from exposure to family violence and child abuse. This meant that the identification of and response to family violence became more systematic under the reforms. However, it found that improvements still needed to be made in identifying and responding to pertinent safety concerns. The proposed amendments broaden the reporting requirements in this regard to interested persons, rather than just parties in child related proceedings. This will include independent children's lawyers, dispute resolution practitioners, family consultants and family counsellors. There is a continuing need to improve responses to child safety concerns and these amendments will therefore be supported by the coalition. Similarly, the record of child welfare agencies in family law proceedings has in many cases been unsatisfactory. Amendments to improve their participation and accountability are welcomed by the coalition and will be supported.

Section 60CC(3)(c) of the act currently requires family courts to consider the willingness of one parent towards facilitating the other to have a meaningful relationship with the child. The provision has been criticised as discouraging parents' disclosures of family violence and child abuse for fear of being found to be unfriendly. The bill seeks to repeal this provision and replace it with considerations of the extent to which each of the child's parents has taken or failed to take the opportunity to participate in major long-term decisions in relation to the child and spend time with and communicate with the child, and the extent to which each of the parents has fulfilled or failed to fulfil the parent's obligation to maintain the child. However, these criteria already exist in section 60CC(4).

The explanatory memorandum cites the AIFS evaluation and the Family Law Council report as the basis for the repeal of the friendly parent provision. This, however, is misleading. The AIFS found that some concerns were expressed that the provision discouraged the reporting of violence but that there was no statistical information to suggest that this was the case. The criticism was in fact voiced in the Chisholm report, uncited in the explanatory memorandum, and was described as gossip by the Family Law Council.

The failure to facilitate a relationship between a child and a separated parent remains a salient issue for the attention of a court and has been found to be an incident of emotional abuse in several reported cases. If the enhanced violence and abuse reporting obligations are supported, there can be no reason for a parent's obstructive behaviour to be excluded from consideration. It should also be noted that this consideration should not arise in the usual course if there are well-founded fears that contact with the other parent exposes the child to violence or abuse. The existing section 60CG makes that clear. Unwillingness on the part of a parent to facilitate a close and continuing relationship with the other parent is undoubtedly a relevant consideration in making parenting orders, which is why the coalition supports the retention of the friendly parent provision.

In the 2009 case of Villey and Prabsik, Mr Justice Watts ordered that a seven-year-old child be removed from his father's primary care to that of his mother. The relevant factual findings were that the mother had suffered a significant mental illness following the parties' separation as a result of the treatment she had suffered at the hands of the father during the relationship. Psychiatric examination of the parties revealed the mother to be fully recovered with an excellent prognosis. She demonstrated insight into her illness as well as its impact on the child. She had rebuilt her relationship with the child in an appropriate manner assisted by professionals. The father, however, was assessed as having a narcissistic personality with overvalued ideas or a delusion that the mother remained ill, unsafe and should have minimal involvement in the child's life. Mr Justice Watts accepted the mother's argument that it would be more likely for the child to have a meaningful relationship with both parents if he lived with his mother rather than his father and that the child would be likely to suffer psychological harm by damage to his relationship with his mother if he continued to reside with his father. This finding would have been more difficult to arrive at had the friendly parent provisions not been in the present act. That case illustrates why the coalition views it as an unwise decision to amend the act by repealing that provision.

The bill proposes to repeal section 117AB, which provides for mandatory cost orders—albeit some such orders might cover only a portion of the costs—where a party knowingly makes a false allegation or statement in the proceedings. The explanatory memorandum cites the AIFS evaluation and the Family Law Council report's finding that the section operates as a disincentive for disclosing family violence. Again, this is misleading. The Chisholm report alludes to practitioner concern as the basis of its recommendation for repeal, but neither of the major studies cited makes any substantive finding. The Family Law Council report in fact recommends that the provision be clarified with an explanatory note or public education, not that it be repealed.

It should be noted that the test propounded in section 117AB is a stringent one. A mandatory cost order could not arise from evidence which was not proffered in the circumstances or even was given recklessly or without belief. It applies only to knowingly false evidence. If a court was prepared to make such a finding there is no reason why a cost order should not follow, as it would in any other court. Individual members of the judiciary have confirmed that such false accusations are by no means unknown and that sanctions must apply in such cases, yet this bill would remove that sanction.

The courts have provided guidance on the application of the existing provision. In Charles and Charles in 2007, Justice Cronin said:

There can be no room for misunderstanding or doubt; objectively, the person making the statement cannot believe the statement to be true.

So constrained, there is no reason to believe that the existing provision acts as a disincentive to properly made allegations or even erroneous allegations made in good faith of abuse. Cost orders are made much less routinely in the family jurisdiction than in any other. Sadly, it is clear that some parties can and will make false statements if they perceive an advantage in doing so. Because cost orders are not routine, there must be an express disincentive within the act.

The policy objectives of the 2006 reforms were: firstly, to help build strong and healthy relationships and prevent separation; secondly, to encourage greater involvement by both parents in their children's lives after separation and to protect children from violence and abuse; thirdly, to help separated parents agree on what was best for their children, rather than litigating, through the provision of useful information, advice and effective dispute resolution services; and, fourthly, to establish a highly visible entry point that operated as a doorway to other services and helped families to access those other services. As the AIFS evaluation confirmed, the legislative changes introduced as part of the reforms placed greater emphasis on the need to protect children from harm, exposure to family violence and child abuse. This meant the identification of and response to family violence became more systematic under the reforms.

Although the Ruddock reforms have been subject to some criticism, all the indications are that overall they have been hugely successful. Some of those criticisms have arisen from misrepresentation or misinterpretation, whether wilful or otherwise. Sensibly, the government has withdrawn its more radical proposals and at this stage will leave the core shared parenting provisions largely intact. However, it is disturbing that it accepted criticisms of the friendly parent and cost orders provisions at face value and has misleadingly cited positive or neutral findings on those provisions in support of its proposed amendments.

The coalition will support any sensible proposals to reduce the exposure of children to abuse and family violence. Our record indicates that we take these issues very seriously indeed. Some of the amendments proposed by this bill are worthy of support; however, as I have said, it must be recognised that proceedings in the family jurisdiction are some of the most bitterly contested and intractable found in any court process. Judges and practitioners are well aware that child related proceedings may be brought with any number of collateral purposes, themselves a form of child abuse, and mechanisms must exist to deal with them. To the extent to which this bill facilitates that objective it will have the coalition's support but to the extent to which in the areas I have indicated the bill overreaches or erroneously applies the conclusions of the studies of the operation of the Ruddock reforms and in doing so sets back those objectives the coalition will move amendments to delete those provisions from the bill.

7:50 pm

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

The Greens support the intent of the Family Law Legislation Amendment (Family Violence and Other Measures) Bill. In 2006, when the Howard Government brought in their so called reforms to the Family Law Act, the Australian Greens expressed our strong concern and opposition to many of the amendments. In fact, we moved many of our own to address those issues. We were particularly concerned about the reforms that affected the best interests of the child, the presumption of equal shared parental responsibility and also the definition of domestic violence.

Specifically, we were concerned with the aspects of the bill that sought to privilege parents' rights over parental responsibilities and children's rights. The notion of equal shared parenting presented in this bill, we believe, reflected a commodification of children that failed to address the best interests of the child based on individual need and circumstances. We were also concerned that the definition of family violence adopted in the bill and then, of course, in the act failed to address the complexity and multidimensionality of this issue and, in so doing, did not provide adequately for family members at risk of family violence, particularly women and children. We were also concerned about the implications of some of the other amendments, specifically the cost orders for false allegations. I outlined these concerns at the time quite extensively, but I would particularly like to remind the chamber of a specific comment I made expressing concern that:

Provisions which require consideration of specific types of parenting arrangements, whether they call for equal or substantially shared time, necessarily direct attention away from a free and open consideration of what arrangements may be in the best interests of the child in any specific case. That is why the Greens believe that a presumption of equal shared responsibility should not be introduced and that each case should be considered on its own merits.

We were concerned at the time that:

… the two-tiered approach of having primary and additional considerations when determining the best interests of the child does not consider the best interests of the child. The Greens support the retention of the current structure of the act. We are concerned that the child's views will be relegated to the list of additional considerations, effectively putting the parent's desire for access ahead of the child's need for security.

I canvassed those issues extensively at the time. We are not surprised that, since then, these so-called reforms have come under harsh criticism from lawyers, advocates and parents for placing the rights of the parents over the best interests of the child. We believe that the reforms have put many children and their families in dangerous situations. That is why we welcome the government's efforts to address these problems and undo some—unfortunately, only some—of the mistakes made by the Howard government. Later, I will go into our concerns that this bill does not go far enough.

We support the prioritisation of the safety of children in family law proceedings and the changes to the definitions of family violence and abuse. Importantly, as we have advocated for over five years, the bill places the best interests of the child as the primary consideration in parenting matters. The definition of abuse has been expanded to include psychological harm, neglect and, notably, exposure to family violence, and a definition of family violence has been placed in the act. The friendly parent and mandatory costs orders provisions, both of which have raised great concern as a major disincentive for reporting family violence, are also being repealed. These changes, and many others contained within the bill, represent very important steps forward in protecting the best interests of children and victims of family violence. The Greens support these changes; however, we believe they do not go far enough.

In our dissenting report of the inquiry by the Legal and Constitutional Affairs Legislation Committee into the 2006 amendments, the Greens recommended that the definition of family violence not be amended and considered that the proposed tests were not adequate. We further recommended:

Upon completion of the Australian Institute of Family Studies review; the Government should work closely with State and Territory Governments to formulate a comprehensive, effective and uniform definition of family violence.

I am therefore very pleased that the government has revised the flawed approach of the 2006 changes. I commend this bill for recognising that exposure to family violence is a form of abuse. It is an important step in improving the protection of children and prioritising their safety. However, the Australian Greens believe that exposure should be included in the definitions of family violence and of abuse and that the definition of family violence should be clarified to ensure that the parent victim is not held responsible for the exposure. The Australian Law Reform Commission notes:

There has been a considerable amount of research documenting the fact that exposure of children to family violence causes long term emotional, psychological, physical and behavioural issues.

It urged the Legal and Constitutional Affairs Legislation Committee inquiry into this bill to include exposure in the definition of family violence and abuse, as certain behaviour can constitute both. It must also be made clear that victims of violence must not be held responsible for not being able to remove children from the violence. This recommendation is supported by the Australian Law Reform Commission and Women's Legal Services Australia. We seek assurances from the government that it considers this to be implicit in the changes it is making.

While we are pleased that the government is addressing the best interests of the child, we were concerned that, because some of the bill's other provisions were not being amended, the way in which the changes had been drafted presented inconsistencies about whether the best interests of the child or maintaining a meaningful relationship with parents prevails. This issue was raised in the committee inquiry by a number of witnesses and in a number of submissions. So we are pleased that the government is seeking to amend the bill to ensure that this is clear. The Australian Greens were concerned that the changes do not go far enough and that the changes do not go to the issues of perceived equal shared parenting and equal shared parenting responsibility. A large number of submissions, including those of professors Rhoades and Dewar and of the WLSA, recommended removing the two tiers of factors present in section 60CC and creating a single list, of which child safety would be the first consideration and be given priority. The government amendments address that. We would have liked to see them go a little bit further.

The Australian Greens support the fact the government has recognised that it is absolutely essential that the best interests of the child are given primary consideration. That is why we find it very concerning that the government took a step back from the amendments that, as I understand it, they were originally considering around addressing equal shared parental responsibility, which the 2006 changes introduced into the act. We believe that the government has not gone far enough in addressing this issue and that having that in place still puts at risk the best interests of the child.

We have consistently opposed the equal shared parental responsibility requirement since its introduction in 2006. As we argued at the time, it creates a de facto presumption of equal time. As I said at the time:

While 'equal shared parental responsibility' and 'equal time' are not one and the same, they are inter-related in a way that creates an unacceptable formula in the bill—

I said 'bill', but it is now obviously in the act.

The concept has moved from a 'presumption of equal time' to a presumption of 'equal shared parental responsibility'.

I acknowledge that. I went on:

However, we are concerned that with a starting point of a child spending 'equal time' or 'substantial and significant time' with each parent this will be a de facto presumption of equal time.

The operation of a presumption such as this, de facto or otherwise, is likely to lead to an inappropriate and harmful focus in determining what is best for children

Evidence to the committee inquiry clearly pointed out that that is in fact what happens. Starting from a presumption of equal time, regardless of what is said about it not being that, that is in fact what happens.

Subsections 61DA(1) and (2) of the act required the court to presume that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent has engaged in abuse or family violence. There are numerous problems with this provision. Professor Chisholm, an expert in this area of law, who presented a submission in person at the inquiry, has explained that aspects of the legislation, including ESPR, are 'unnecessarily complex and confusing, making it hard for people to focus on the best interest of children'. While the act does not create a presumption of favouring equal time, it can easily be interpreted that way, as it is the only outcome the act specifically mentions. Professor Chisholm notes:

On this, as on other matters, I believe that the Act is subtly incoherent, sending out inconsistent messages. Not surprisingly, the AIFS Evaluation and other reports reveal that it has caused considerable misunderstanding.

As I pointed out, that was raised a number of times.

According to evidence given at the inquiry, the presumption of equal shared care is meant to be rebutted by family violence, but it is not given due weight, especially at an interim stage where the family violence allegations are unlikely to be considered or tested. These concerns are supported by the AIFS evaluation which found that, of parents who had set up arrangements after the 2006 reforms, those with safety concerns were no less likely than other parents to have shared care-time arrangements.

It is self-evident that failure to adequately consider family violence can lead to negative outcomes. Data provided as part of the inquiry indicates that the reforms have been successful in producing an increase in shared care arrangements since the legislation came into force. At the same time, however, the research indicates that a significant number of these arrangements are characterised by intense parental conflict and that shared care of children is a key variable affecting poor emotional outcomes for children. Further evidence from the Family Law Council stated that there is no clear evidence on the benefit of shared parenting arrangements. They said:

The recent research that has been released, including reports by the Australian Institute of Family Studies, Cashmore and others and McIntosh and others, indicates that shared parenting arrangements of themselves offer no independent benefit to children compared with other types of arrangements where children see their non-resident parent regularly and there are no concerns about safety, violence and conflict.

It became increasingly evident throughout the hearing process that a flexible approach is needed, tailored to the circumstances of each family, not a one-size-fits-all requirement of shared responsibility. Parenting arrangements should always be governed by the best interests of the child and should be determined on a case-by-case basis. Evidence indicates that the presumption of ESPR does not necessarily equal the best interests of the child. We believe that these provisions should be repealed. In fact, I have got amendments to do that, because that would complement the other amendments that the government has made. This is not to say that we do not think shared parenting arrangements work. We are not saying that. We are saying you need to work those out in the best interests of the child, and there is still a part of this act that is inconsistent with the changes that the government wishes to make.

Finally, the Australian Greens draw attention to a recommendation made by the Women's Legal Service Australia when we were holding this inquiry into this bill. Over 50 per cent of parenting matters in the family law courts involve allegations of child abuse and/or family violence. As such, the WLSA recommends implementing a risk management framework to identify and explore issues of family violence and child abuse at the initial stages of application. Such early risk assessment 'would contribute to ensuring that the matter proceeds through the most appropriate court division and ensuring less adversarial and earlier resolution of issues' as well as assisting 'agencies to ensure that appropriate referrals can be made and safety planning undertaken for women and their children when necessary'.

The Australian Greens recognise that implementing a risk assessment framework would present a significant and broad reform of the family law system and related government policy. However, we believe that this suggestion is worthy of support and we recommend that it be explored further in any other amendments that are made to the Family Law Act. We will be supporting this law reform. We believe they are significant reforms. As I articulated earlier, we believe that they address significant flaws in the Family Law Act. They do not go far enough. I was concerned, and am still concerned, that the government did not proceed with as full and extensive a set of amendments as we had at first anticipated they would. Having said that, these amendments will make a real difference to the safety of families, and the safety of children in particular, and put the best interests of the child at the centre of things rather than sublimating the interests of the child to the de facto presumption of equal shared care, which actually then prioritises a parent's rights above the best interest of the child. This redresses those flawed amendments. Having said that, we will be supporting this legislation. However, we will be moving amendments specifically to improve the definition of family violence and also, as I said, to remove the shared parental responsibility provisions that are currently in the Family Law Act.

8:07 pm

Photo of Trish CrossinTrish Crossin (NT, Australian Labor Party) Share this | | Hansard source

I rise this evening to speak on the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, a bill which I believe is long overdue. This bill is important, as it seeks to address serious issues with our family law system. The system as it currently stands does not adequately protect children from family violence.

The evaluation of the 2006 family law reforms by the Australian Institute of Family Studies found that two-thirds of separated mothers and over half of separated fathers reported experiencing abuse, either emotional or physical, by the other parent—I want to emphasise that. The institute also found that one in five of the separated parents who were surveyed reported safety concerns associated with ongoing contact with their child's other parent. Disturbingly, the evaluation also found that shared parenting responsibility was the outcome for 75 per cent of children where there were allegations of family violence and child abuse. A report by the Family Law Council highlights data that victims of family violence receive more psychiatric treatment and have an increased incidence of attempted suicide and alcohol abuse than the general population. Violence is also a significant cause of homelessness. So research and various reports by leading social scientists and academics have consistently shown that exposure to family violence and child abuse leads to poor developmental outcomes for children.

It is truly concerning that the family law system in this country is failing our children. Children have a fundamental right to live happy and healthy lives in a safe environment. The family law system must prioritise the safety of children to ensure that their best interests are met. The bill before the Senate this evening goes a long way to addressing the current failings in our family law system. The purpose of this bill is to amend the Family Law Act 1975 to better protect children and families at risk of violence and abuse, while also making technical amendments to provide efficiencies for the courts and litigants.

The exposure draft of this legislation was released for public comment by the Attorney-General's Department as far back as November 2010, so it has been out there for at least a year. In that consultation period 400 submissions were received, with 73 per cent supporting the amendments and 10 per cent bravely offering information about people's own experiences with family law.

As the explanatory memorandum states, the key provisions of the bill aim to prioritise the safety of children in parenting matters; to change the definitions of 'abuse' and 'family violence' to better capture harmful behaviour; to strengthen the obligations of advisers by requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children; to ensure that courts have better access to evidence of abuse and family violence by improving reporting requirements; and to make it easier for state and territory child protection authorities to participate in family law proceedings where appropriate.

I want to make it clear this evening that the government continues to support shared care and a child's right to a meaningful relationship with both parents. What I do not support is for shared care to take precedence over the safety and wellbeing of a child. That is what this bill clarifies: that the safety of the child is of utmost, paramount, importance. Importantly, the bill changes the definitions of family violence and abuse to better define harmful behaviour such as emotional, psychological and economic abuse and stalking. The definition clearly states examples of behaviour which may constitute family violence as including intentionally damaging or destroying property, intentionally causing death or injury to an animal, unreasonably denying a family member the financial autonomy that he or she would otherwise have had, and preventing a family member from making or keeping connections with his or her family, friends or culture. Another important change clarifies that exposing a child to family violence is abuse in relation to the child. As victims know all too well, family violence takes many forms, not only physical, and can affect any member of the family regardless of gender.

The Senate Legal and Constitutional Affairs Legislation Committee, which I chair, held a public inquiry into the bill that is before us today. The inquiry was referred to the committee on 25 March this year and we tabled our report on 22 August. We received 275 submissions, which I might say is quite a large number. They came from a range of organisations, government departments and individuals and the majority supported the bill's objectives. In its final report the committee made eight recommendations and I am pleased to say today that the government is adopting six of those eight, I think.

The government has accepted the following recommendations made by the committee. The first recommendation that our committee put forward, which has been adopted, is that we clarify the provision that requires the court to give greater weight to the protection of children from harm when determining what is in the child's best interests. Our third recommendation, which proposes a new paragraph to better define what a court can consider in relation to family violence orders as part of considering the child's best interests, will also be taken into consideration by this government in moving further amendments.

Recommendations 5 and 7 propose to have schedule 1 commence on the day after the end of the period of three months beginning on the day of royal assent. This will provide certainty around the commencement date of the provisions of the bill and the matters to which the amendments apply. This was a matter of some discussion amongst all members of the committee. As we all well know, when new legislation like this comes into place, there are always matters before the court that may or may not get caught up in the new provisions. That required some discussion and careful determination by the committee as to what we should do with regard to the recommendations in our report.

The sixth recommendation does not require amendments to the bill, but the committee proposed that the Attorney-General's Department, along with the family law courts and relevant organisations, institute an education campaign to ensure the public as well as those involved in the family law system are well aware of these new changes and how they may affect them.

We also recommended that the bill be amended to require that the Family Court give consideration to the reasons that one parent might not have facilitated a relationship with the other parent, and to remove reference to the word 'serious' in the new definition of abuse. With regard to the latter, organisations were concerned that only serious abuse is defined as child abuse, whereas it could be argued that any abuse is in fact serious. The Attorney-General's Department responded to those concerns by saying serious was included to avoid over-reporting, that authorities may be hindered from identifying and dealing with serious cases of harm due to excessive reporting. This government has also stated it does not accept those two recommendations as 'they would likely have unintended consequences and decrease protections for children from violence and abuse'.

As Chair of the Senate Legal and Constitutional Affairs Committee, I want to thank everyone who participated in the inquiry, brought forward submissions and appeared before us to give evidence, particularly those who attended the hearing.

There have been many reports into the family law system in Australia: the Australian Institute of Family Studies, the Australian Law Reform Commission, the New South Wales Law Reform Commission, the Family Law Council and of course the work that has been done by Hon. Professor Richard Chisholm AM, to name a few, who have provided research and analysis into the failings of the current family law system. Their research has a similar conclusion: that more needs to be done to protect and support families within the system who have experienced or are at risk of abuse or violence, particularly children.

The bill before us today takes crucial steps towards ensuring that the safety of children is paramount, particularly during the difficult time of family separation. Also, the bill and the amendments that have been picked up by the government reinforces the valuable work that Senate committees do in this place in terms of looking at legislation and providing a means by which organisations and experts can have input into and propose sensible changes to legislation before us. Governments are willing to listen and pick up those amendments and adopt them.

The bill retains the substance of the shared parenting laws that were introduced in 2006—and I cannot emphasise that enough. The bill continues to promote a child's right to a meaningful relationship with both parents, but with one very important condition: that the best interests of the child must and should always come first. The government has now picked up my committee's recommendations and will seek to amend those during the course of the debate on this legislation. I support the bill and commend my report and this bill to the Senate.

8:19 pm

Photo of Brett MasonBrett Mason (Queensland, Liberal Party, Shadow Minister for Universities and Research) Share this | | Hansard source

No matter what position and what perspective one brings to discussion of family law, one thing we all agree on is that this is an incredibly difficult area of law and of public policy. Family law matters tend to be emotionally charged and too often of course involve intractable disputes, often dysfunctional parental or family dynamics, and tragically, as Senator Crossin and other senators have noted, sometimes even issues of abuse and domestic violence as well. It is often remarked, unfortunately, that lawyers practising in this area experience the highest rate of mental health problems: addiction, depression, marital problems and even suicide. Quite clearly, this is an area of law that takes its toll not only on the people subject to the law but on the very profession itself.

The legislators, the members of parliament and the senators concerned with family law in many ways have both the best and the worst of involvement. It is the best because our professional involvement often amounts to no more than a 20-minute debate contribution followed perhaps by a committee and then by a vote. But the worst because the laws we thus enact can make the difference between the hell or the mere purgatory for tens of thousands, young and old, brought before the family law system. The role of family law should ideally be to facilitate the smoothest resolution of the matters in dispute in what is, I think all senators would agree, typically an emotionally charged atmosphere, balancing competing interests in a way that is fair, just and equitable. In the end, the coalition is forced to conclude that this bill will take us further away from achieving this primary objective.

It is impossible to understand this bill without first understanding the context of the 2006 family law reforms. These legislative reforms followed literally years and years and years of consultations, which culminated in the landmark report Every picture tells a story by the House of Representatives Standing Committee on Family and Community Affairs in December 2003. That inquiry into child custody arrangements in the event of family separation undertook, I think it is fair to say, exhaustive public hearings. Most notably, the resulting report was—I should remind the Senate of this—bipartisan and the result was also unanimous. Over the next three years the report of the House of Representatives committee gave impetus to reforms that at their heart had the concept of shared parental responsibility. This involved recognition and protection of the right of the child to a mother and a father, as well as grandparents, in their lives. It also involved recognition that despite separation of parents shared care was an important ideal to strive for, particularly for children.

The 2006 reforms recognised that shared care was not always possible and, indeed, it was not always appropriate or responsible. As such it was not, and was never, the only consideration to be weighed in family law disputes. An extensive range of factors the courts must have regard to is set out in section 60CC of the act.

The bill before the Senate this evening at its core is a rollback of the 2006 shared care reforms. To the mind of the coalition, it reflects a lack of understanding as to how to truly put children and their best interests at the centre of family law proceedings. It shows no genuine understanding of how that system works in practice and of the many difficulties it produces. I believe that in the legislative struggle to make family law dispute resolution less like hell and more like purgatory, or perhaps hell with hope as it is often described, this bill tips the scales again back towards hell.

I worry that in time it will stand as yet another example of Labor's inability to implement anything competently. I am no expert on family law and I do not claim to be. But I am more than aware of heartbreaking stories of many men and many women and how their lives have been impacted and sometimes devastated when they come into contact with family law matters or separation from their children. I know all my coalition colleagues would agree that while we support the ostensible aim of this bill we cannot support the bill as it is currently drafted.

The coalition—and I share this with Senator Crossin and remarks made by other senators—believes strongly in protecting both children and adults from violence and abuse. The government is right to point that out. There is absolutely no excuse for domestic violence or sexual abuse of any kind against women, or children, or in some instances, against men. Of course, it is absolutely crucial that children are kept safe from abuse of all kinds: physical, emotional, sexual and so on. That is true.

But also it is critical that children are kept safe from the effects of false allegations of sexual abuse by one parent against another in family law proceedings. Let the Senate not forget that. Children need to be protected against both of these evils. Both can have devastating effects on families but, most importantly, long-term detrimental and profound effects on the kids involved, both socially and emotionally. The coalition's serious reservations and, indeed, our misgivings, about the key defects in this bill are reflected in the additional comments of coalition senators in the Senate committee's report on this bill, and I note Senator Humphries being here this evening.

Overall, the fundamental problem with this bill lies in the unintended, the unfair and potentially even the perverse consequences that will arise from the bill's application and from its interpretation. These consequences, to the mind of the coalition, threaten to undo any good otherwise achieved by the bill. Let me touch on a few of the failings of this bill as they are reflected in the opposition's amendments, to be moved later this evening in committee.

Firstly, the absurdly broadened definition of family violence diminishes and trivialises the very serious issue of violence which a small minority of men and some women perpetrate. The coalition is not opposed to a sensible broadening of the legislative definition of family violence, but the proposed new definition embraces such a breadth of behaviour as to make the concept of violence as commonly understood in the community almost meaningless. Combined with the removal of any objective criteria, thereby imposing an entirely subjective test of what constitutes family violence, this amendment can only lead to much heartache and much litigation.

Secondly, the repeal of the so-called 'friendly parent' provision makes little sense. That is, the removal of the current positive obligation upon separating parents to facilitate a child's relationship with the other parent, to have a positive duty to support that ongoing relationship. It is claimed this current provision inhibits women from disclosing violence, but where is the evidence of this other than the purely anecdotal? It is a very serious claim that the government has not really substantiated to underpin this bill.

Thirdly, by repealing section 117AB, the bill also deletes the only penalty that applies to those who make—I want to emphasise this—deliberately false allegations of child abuse or family violence in proceedings. After the amended bill takes effect, what will be the sanction for someone who deliberately makes false allegations of child abuse? There will be none. Making an allegation that turns out to be unsubstantiated is one thing, as Senator Humphries knows. This is not simply an allegation that cannot be proven but one that is known to be false at the time it is made. What is the sanction?

Photo of Gary HumphriesGary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary to the Shadow Attorney-General) Share this | | Hansard source

Zero.

Photo of Brett MasonBrett Mason (Queensland, Liberal Party, Shadow Minister for Universities and Research) Share this | | Hansard source

Senator Humphries is right. There is not one. Again, for this reason, the coalition does not support the bill. The coalition argues that it will be a great tragedy if this bill starts a race to the bottom to see who can allege family violence first. Husband or wife: who alleges it first? Will be it be a race to the police to allege family violence first? That really worries the opposition. It beggars belief that the government simply closes its eyes to this likelihood. Let us see what happens in the future. I hope I am wrong, but I am not sure I am. If an allegation does not have to be substantiated, if it is purely subjective and there are no penalties for making knowingly false allegations, do we really believe that some family lawyers and litigants will not use this procedurally to gain leverage and exert pressure upon the other party? Do we really believe that they will not do that? I wish I was wrong about human nature.

If there is no longer a positive obligation to encourage and support a child to have a meaningful relationship with a former partner who is that child's parent, do we really believe that this will help children better cope at this most difficult time in their lives? Do we really believe that? If there is no longer a legal obligation, do we really believe that many people will not put their personal animosities, their conveniences and their comforts ahead of the objective best interests of their children? Just how much do we have to suspend our beliefs in order to pass this bill?

Just as the government does not believe that this bill will have negative consequences, it does not believe it will require any additional resourcing for the Family Court or that it will create any increased workload. In this bill the government demonstrates a lack of understanding of both human nature and the nature of the family law system. It is a system already stretched to the absolute limit—delays are endemic and practitioners already describe the Family Court as the court of fairytale. That is without adding the burden of this bill's provision to the mix.

Regrettably, the likely consequences of this bill will be a massive surge in the number of apprehended violence orders and temporary protection orders across Australia. I hope I am wrong, but I am just not sure I am going to be. Already discredited and all too often misused as tactical devices, DVOs will come into further disrepute and indeed further disdain. This is neither in the best interests of family law courts nor the children affected, let alone the women and children who genuinely need the protection of these court orders for their very safety.

This bill will likely lead to more false allegations being made in family law proceedings. More children will be deprived of time and contact with one of their parents. Enormous pressure will be put on litigants to settle against the threat of unfounded allegations that do not have to be substantiated by the other party, and that is the key. Given that around 94 per cent of all family law cases are resolved before formally going to trial, only six per cent of family law cases go to final judgment. There is plenty of bargaining being done in the shadow of the law, as the old expression goes.

While ostensibly intending to further protect those affected by violence and abuse with the shield of the law, the government has instead produced a club that parties to a dispute can use to freely trash each other. It is a club that the opposition is very concerned will be much used and indeed abused. The winners may well be the unscrupulous. The losers will be the real victims—the kids who will be unfairly denied contact with both parents and indeed our justice system.

This is a difficult bill and I concede this is a very difficult area of law and public policy. I concede further that I am not an expert in this area, but I do know as a member of parliament that it is highly contentious, very emotional and very difficult. The coalition does not believe that this bill deserves the Senate's support. It does not believe the case for the amendments in schedule 1 of the bill has been made by the government.

Regrettably, I suspect the probably guillotining here tonight of this bill that is critical potentially for hundreds of thousands of people in this country. This is major legislation with a major impact. The bill will not receive the scrutiny it deserves, particularly in committee tonight, which is wrong, given that it will have such an enormous effect on the emotional and family structure in this country. This is a very important piece of legislation and will affect families throughout the nation. It will change the family dynamic. Indeed, it will change the prospects of custody for both men and women in our country. This is major legislation with major consequences.

In conclusion, I reiterate the coalition's deep concern about the drafting of this bill, the lack of evidence from the government to support these changes and the bill's dire implications for families already facing the heartache and difficulties of separation. It is such a pity we will not have further time, particularly in committee, to talk about the evidence that is available and ask the hard questions of the minister as to how the bill will operate. We are not going to have that time. It is a great pity and, given how important this bill is, it is ridiculous.

8:38 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I will limit my remarks to no more than five or so minutes because I am grateful to my colleagues who have slotted me in tonight. I want to reflect on something that Senator Madigan told me privately, with his permission. I want to share his disgust at the lack of appropriate process in dealing with such an important piece of legislation.

What is more, there are four other bills tonight that there will be no opportunity to speak on because at 9.30 effectively the guillotine will be applied. We will not have an opportunity to discuss the Crimes Legislation Amendment Bill (No. 2) 2011, which deals with issues of systemic corruption; we will not have an opportunity to discuss the Aviation Transport Security Amendment (Air Cargo) Bill 2011, again an important piece of legislation; we will not have an opportunity to discuss the Veterans' Affairs Legislation Amendment (Participants in British Nuclear Tests) Bill 2011; nor will we have an opportunity to discuss the Protection of the Sea (Prevention of Pollution from Ships) Amendment (Oils in the Antarctic Area) Bill 2011. That is clearly unsatisfactory. This is meant to be the house of review. This is the place where we are supposed to scrutinise legislation. What is happening in this place tonight, and indeed what occurred last night, is completely unsatisfactory.

In the remaining two or so minutes I will reflect on this particular piece of legislation, the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. There is no question that the safety of children is absolutely fundamental and paramount in our family law system and that we are dealing with vexed and difficult issues. We are dealing with deep sadness, instances of violence and abuse and the fundamental issue of protecting children. I have reservations about the bill in its current form—reservations as to whether there will be a number of unintended consequences and as to whether we will end up taking a step backward from having a fair and just family law system, a system that will put the protection of children first and foremost.

I am concerned that the bill does, as Senator Brandis indicated, overreach and, by doing so, is fundamentally flawed. I think there are issues in relation to the proposed new definition of family violence—that the existing definition is being taken away from us and that issues of reasonableness and a test at common law will be taken away from us with this bill; not to have a more measurable test is deeply flawed. I am concerned that removing issues of reasonableness is dangerous. I am concerned, in relation to the friendly parent provisions that this bill effectively seeks to remove, that there will be a number of adverse consequences. I am concerned that the report of the Legal and Constitutional Affairs Legislation Committee makes mention that some submitters argued that repealing the friendly parent provisions could reward those parents who actively prevent non-resident parents from having contact with their children. And I am concerned at remarks made by the Chief Justice of the Family Court, the Hon. Diana Bryant, who argued that many cases close to completion could be prolonged, putting children at extra risk by log jamming the courts and increasing family stress, unless there are significant extra resources for the Family Court.

But there is one clause that I find particularly objectionable, a clause that I think is almost Orwellian in its scope—that is, the clause that proposes to repeal section 117AB, which provides for mandatory costs orders in the event that false statements have been made. You need to prove that. There is a high threshold.

Mandatory costs orders in such circumstances send a strong message to family law litigants that making false allegations is not tolerated. Unfortunately, false allegations are made in this jurisdiction by all sides. There are a number of cases that have been brought to my attention. I will not mention the names of the parties but, for instance, there was a case where the mother was found to have fabricated allegations of abuse against the father, another where a father was found to have knowingly made false statements about the mother's parenting capacity, another where the mother was found to have knowingly made false statements that a child sustained an injury while in his father's care. Although mandatory costs orders are not often applied, removing the ability for the courts to impose such orders will remove the incentive for people not to make false accusations. That is a fundamental concern I have in relation to this bill.

I also have a concern about the process here. Australians deserve better. They deserve such an important piece of legislation to be debated properly, to be dealt with properly in the committee stages and to be subject to appropriate scrutiny—for questions to be asked and substantially answered by the government. We will not get that opportunity tonight.

I cannot support the bill in its current form. There will be a number of amendments moved by the coalition. I indicate that I will support those amendments because I think they will make the bill tenable. But in the absence of those amendments being passed, I cannot in good conscience support this bill.

8:44 pm

Photo of Penny WrightPenny Wright (SA, Australian Greens) Share this | | Hansard source

I rise to speak in relation to the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. My Greens colleague Senator Rachel Siewert has already spoken on this bill, and I support her comments and the amendments she has proposed.

My comments on the bill, and the amendments proposed by the Greens, are informed by my experience in this area, which I think is particularly relevant. In the 1980s, I worked as a solicitor and some of my clients were women experiencing what was called domestic violence in those days but is now called family violence. More recently, I worked as a family dispute resolution practitioner or mediator with Relationships Australia until 2010. I will come back to those experiences in a minute. The government's stated purpose of the bill is to:

… amend the Family Law Act 1975 … to provide better protection for children and families at risk of violence and abuse.

Schedule 1 of the bill primarily amends part VII, dealing with children, of the Family Law Act 1975 to enable the courts and the family law system to respond more effectively to parenting cases involving violence or allegations of violence. Schedule 2 contains more technical and procedural amendments to the Family Law Act and Bankruptcy Act 1966. This proposed legislation has been prompted by research findings from credible Australian institutions and academics, including the Australian Institute of Family Studies in their Evaluation of the 2006 family law reforms, Professor Richard Chisholm in his Family courts violence review and the Family Law Council in its Improving responses to family violence in the family law system: an advice on the intersection of family violence and family law issues. In addition, the October 2010 report from the Australian Law Reform Commission and the New South Wales Law Reform Commission, Family violencea national legal response, has informed the discussion about the current state of the law.

Much of this research has been focused on assessing the consequences of the 2006 amendments to the Family Law Act, of which we have heard something tonight, to promote the equal sharing of time by parents after separation by creating a presumption of equal shared parental responsibility. Over time, through anecdotal evidence and then as a result of research findings, it has become clear that there are serious concerns about the effects of the 2006 changes to the law.

During my time as a mediator, I worked with many separating couples. I was drawn to this work because it offers an alternative to the conflictual and adversarial process that sadly often accompanies family break-ups. By helping parents to focus on the most important aspect of their life together—their kids—they can be assisted to move beyond their hurt and discord to make strong and powerful decisions which benefit their children and, as a consequence, themselves. I have a strong belief in the value to children of having strong, loving relationships with both parents where those relationships are respectful, responsible and safe. My brother was the primary caregiver for his three daughters, nurturing them through their teenage years and into their secure, happy, adult years. I have the utmost admiration for the safe, loving environment in which he raised his daughters and the great job that most parents—fathers and mothers—do in raising their children. But the fundamental requirement for safety and protection of children from harm must not be sacrificed for some notion of a parent's unassailable right to have a relationship with a child if the risks associated with that relationship are unacceptably high.

Unfortunately, in the course of my mediation work, it became increasingly apparent to me that what may have been well-intentioned amendments to encourage parents to share the parenting of their children after separation have had some unintended and extremely harmful consequences. It is some of those consequences which this legislation is aimed at addressing. It became obvious that the presumption of equal shared parental responsibility for children had become a de facto presumption of equal time and was contributing to a rigid and demanding expectation on the part of parents which undermined the possibility of reaching a flexible agreement that responded to the unique needs of a particular child and family. Parents began to come to the mediation sessions with a fixed requirement based on the misconception that equal and shared parental responsibility meant equal parental time. Their rights to time with their child were uppermost in their mind—not the quality of the time or the needs of the child. They were fixated on their rights as against the rights of the other parent and the interests of the child were lost.

Although I would try to encourage parents to focus on their child as an individual with particular and unique needs which needed to be factored into the arrangements they were making, there was often nothing I could do to shake the attitude. Quite often my attempts to explain the difference between shared responsibility and shared time would elicit incredulity or accusations that I was biased against one parent or the other. In one particular case, I was abused by an angry parent who refused to accept that it may not be in the best interests of his four-month-old daughter, who was still breastfeeding, to spend overnights away from her mother at that stage. He accused me of discriminating against him because he was not a woman—absolutely unwilling to consider the nutritional or emotional needs of his young child at that time because he was so fixated on his right to shared responsibility as a parent.

Because some parents were demanding the right to 50 per cent of a child's time, it was difficult to get them to consider such things as the age of the child, the child's needs and circumstances, the practicality of arrangements which might mean travelling long distances to effect the changeover or the overall best interests of the child. I witnessed this across the whole spectrum of ages, from very young children right through to teenagers of 15 or 16 who had social lives and commitments of their own and were not very keen to be divided down the middle in order to meet their parents' sense of entitlement.

Due to the pervasive view that equal shared parental responsibility means equal time, the default position for negotiating became a fifty-fifty shared care arrangement. Because of this, parents became less willing to negotiate any alternative that might take into account the child's needs based on their schooling, their interests or their particular personality. Where a child is quite robust, moving from one home to another on a regular basis—weekly, every three or four days or, in some notable cases, every two days—may not be difficult for them. But another child might have a personality which is not suited to constant change. A perceptive parent would see that their child would benefit from having a single identifiable home base while spending quality time with the other parent at that parent's home. But a parent fixated on strictly equal parenting time would be unable to recognise that need. I am strongly of the view—which is supported by evidence before the Senate inquiry—that the presumption of equal shared parental responsibility in section 61DA of the Family Law Act has detrimental outcomes for children. It skews the consideration of the court as to what the best interests of the child are and contributes to a prevailing misconception that parents are entitled to equal parenting time with their children irrespective of the child or the circumstances. The presumption of equal shared parental responsibility is not conducive to the best interests of a child and should be repealed in accordance with the Greens amendments to be introduced by Senator Siewert.

Let me turn now to the vexed issue of family violence, which is an aspect of life for many Australian children and adults—and this bill reflects that reality. Ensuring their safety, as much as possible, must be a priority. In its study, the Australian Institute of Family Studies concluded that, while the 2006 reforms had a positive impact in some areas, there was clear evidence that the family law system as a whole had a way to go in achieving an effective response to families presenting with family violence and child abuse. Alarmingly, it noted that, while children in shared care represent a minority overall, and while the majority of families with shared care appear to be doing well, there is evidence that these arrangements are sometimes made even in circumstances where parents have safety concerns, with adverse consequences for the wellbeing of children. Alarmingly, the evaluation found that families where violence had occurred were no less likely to have shared care-time arrangements than those where violence had not occurred. Similarly, families where safety concerns were reported were no less likely to have shared care-time arrangements than families without safety concerns.

Evidence before the inquiry, including studies from the Australian Institute of Family Studies, Professor Richard Chisholm and the Family Law Council, indicates that provisions in the Family Law Act are a disincentive to parents to raise safety concerns for fear of falling foul of the court. These include the so-called 'friendly parent' provisions and the ability of the court to order costs for false allegations against another parent.

It is not hard to understand why this would occur, as in each case the stakes are high for a parent who is not believed. In relation to the 'friendly parent' provisions, a court is required to take into account the willingness and extent to which one parent has facilitated the child having a relationship with the other parent when determining the best interests of the child and, ultimately, orders dealing with parenting arrangements and parental responsibility. A finding that a parent has not facilitated the relationship with the other parent may result—and has resulted—in a court deciding to grant more, or exclusive, time with the other parent even though there may be good reasons to explain the failure to facilitate, such as a fear of violence, abuse or risk to the child. Professor Chisholm's review concluded:

On the material available, it seems likely that the friendly parent provision, s 60CC(3)(c), while it might have had a beneficial effect in many situations, has had the undesirable consequence in some cases of discouraging some parents affected by violence from disclosing that violence to the family court.

In my mediation work I witnessed coercive, threatening and sometimes violent relationships where there was pressure by one parent on the other to agree to fifty-fifty shared care because it was seen as a default position, a normative arrangement, irrespective of the effect on the child. I also saw parents who were subject to violence or intimidation or were concerned about the treatment of their children by the other parent but who were reluctant to discuss these things or to withstand the pressures of the other parent to reach agreements about parenting that they felt were not in the best interests of their children. This was because they were fearful of being labelled an 'unfriendly' parent, due to the serious consequences such a label would attract. So they made a choice, understandable in the circumstances, to stay silent or risk losing contact with their child.

This bill will amend the 'friendly parent' provision by requiring a court to consider why a parent may not have been willing or able to facilitate the child's relationship with the other parent, and those reasons may well encompass violence or abuse. If the 'friendly parent' provision is to remain a factor to be taken into account by a court, and this bill does not repeal the provision altogether, it is imperative that the court be required to consider the context for a parent's failure to facilitate the child's relationship with the other parent. This will provide a fuller picture of the situation for the court and encourage a parent to disclose violence or abuse.

I also support the bill's removal of the mandatory penalty of $10,000 to be imposed by the court for false allegations of family violence or abuse. The evidence before the inquiry was that it had been little used but still caused fear among those who had experienced violence or abuse but were terrified that they would not be able to prove it, thus silencing them. Many of the submissions to the inquiry supported the repeal of the relevant section because it had the effect of discouraging the disclosure of violence and abuse. That is not good for the person who has been subject to the violence and it is not good for the children who are part of that relationship.

In conclusion, our family law system must make the safety of children a priority. This must be the predominant determinant of their best interests. There is a compelling case for reform of the existing situation. This bill has been the subject of a thorough inquiry by the Senate Legal and Constitutional Affairs Legislation Committee. Submissions were received from a diverse range of individuals and organisations. Of these, 73 per cent were in favour of the proposed amendments to the Family Law Act contained in the bill. More recent research from the Benevolent Society based on a survey of 1,071 respondents revealed that 93 per cent of people agreed that safety and security are the most important issues for a child when a relationship between parents breaks down, and between 86 and 93 per cent of the respondents agreed that a child's right to safety is more important than a parent's right to equal time.

I commend the government for the reforms that are included in this bill. It has heeded the calls of many for changes to a system that was clearly not adequately protecting some children and adults from family violence and abuse. However, as I have discussed, I believe that these measures have not gone far enough in responding to the evidence of what is needed to protect children and adults from family violence. For this reason, I urge the Senate to support the further amendments that will be moved by the Australian Greens.

8:59 pm

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for the Defence Force and Defence Support) Share this | | Hansard source

I also want to say a few words in support of the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. The coalition, as has been indicated by Senator Brandis, supports the strengthening of the provisions relating to family violence and child abuse because the coalition believes that nothing is more important than the welfare of children in the event of marital breakdown. The fact that the Senate Legal and Constitutional Affairs Legislation Committee heard submissions from some 200 interest groups on this issue is testament to the broad community concern the matter has generated.

In 2006 the Howard government recognised some of the shortcomings of the Family Law Act following the handing down of the House of Representatives committee report entitled Every picture tells a story. Our government enacted appropriate amendments. The bill before the Senate takes those improvements a step further. I commend the bill because it provides greater protection for the most vulnerable members of our society—our children—during and after a relationship breakdown. We should all be disturbed at the statistics showing an alarming prevalence of abuse experienced by separated mothers and fathers. A detailed study by the Australian Institute of Family Studies revealed that two-thirds of separated mothers and over half of separated fathers reported experiencing physical or emotional abuse from the other parent. One in five parents expressed safety concerns associated with contact with the other parent.

Having said that, I want to raise a potentially disturbing matter relating to the valuable work of the Family Court based in Townsville. As senators will know, my office is based in Townsville and I live in that region, and I am interested in how the Family Court does its work in that area. There has been a Family Court judge based in Townsville since 1982, servicing not just Townsville but the whole of the vast North Queensland region. The incumbent Family Court judge, the Hon. Justice Monteith, is due to retire at the end of November, but there is no certainty that he will be replaced. This is despite assurances given prior to the 2007 federal election by the then Attorney-General Senator Joe Ludwig that the position would be retained.

In addition to Senator Ludwig's 2007 commitment the Chief Justice of the Family Court, the Hon. Diana Bryant, publicly assured the Townsville legal profession in early 2008 that the Townsville based position of a Family Court judge would be maintained. Despite Senator Ludwig's promise and Justice Bryant's assurance the Gillard government has so far declined to name a successor, prompting very great and very real concern in legal circles in the north and raising serious questions about the truthfulness of the assurances given by this government. Could this be another lie in the making? We all know that Prime Minister Gillard went to the last election promising not to introduce a carbon tax, but what did she do as soon as she was elected? She broke her solemn word to the Australian people and introduced her toxic carbon tax, under duress from Senator Brown and the Greens, in a desperate bid to cling to power.

There can be no question about the need to continue the work of the Family Court in North Queensland. Indeed, there is a case, I submit, for providing even more resources than the court currently has at its disposal. As most senators would know, Townsville and the North Queensland region have grown exponentially since 1982 when the first Family Court judge was appointed. This growth has been fuelled by major developments in the defence, mining, minerals processing and primary industry sectors. Over the next few months 750 soldiers of the 3rd Battalion of the Royal Australian Regiment and their families will complete their relocation to Townsville, boosting the regional economy by an estimated $60 million a year. New mines are being opened up and many existing mines are being expanded to keep pace with the international demand for our mineral resources. This is despite the minerals resource tax imposed by the Labor government—which will only last as long as the Labor government does, and hopefully that will be a very short time. International mining companies, understanding that this government is on a very limited tenure, are still looking at the north of Australia for further investment in minerals.

Over 40 per cent of Australia's export earnings, I am always proud to say, are now generated in Northern Australia, despite the fact that only five per cent of Australia's population lives in what we class as Northern Australia. But this incredible growth brings with it an increase in social problems and marital breakdown, and this is exacerbated in the north by issues such as defence related psychological factors, fly-in fly-out working arrangements and deprived living conditions in Indigenous communities which exist mainly in northern and remote Australia. These factors have combined to significantly increase the case load for the Townsville based Family Court, which covers the vast area from as far south as Rockhampton and Mackay, north to Cairns and west to Mount Isa and encompasses Cape York and the Torres Strait Islands. Even the Labor Party, which has shown little interest in rural areas such as North Queensland, should be able to recognise the importance of supporting the work of the Family Court in this region by announcing a replacement for the retiring Judge Monteith as a matter of urgent priority. I fear that with a Canberra based government consisting of the Labor Party, who have little interest in Northern Australia and little interest in regional Australia, this is another one of their out of sight, out of mind approaches.

The President of the Townsville District Law Association, Diane Ruhl, wrote to the Attorney-General, the Hon. Robert McClelland, on 8 November this year formally requesting that he honour Senator Ludwig's election promise to continue the practice of basing a Family Court judge in Townsville by naming Justice Monteith's successor. I understand that to date there has been no response to the law association's request. The Labor government and the Labor Party showed no hesitation when Senator Ludwig shut down the northern live cattle export industry to appease the Greens earlier this year, with disastrous consequences for Northern Australia. I now call upon Senator Ludwig to urge the Attorney-General, Robert McClelland, to honour the election promise that Senator Ludwig made in 2007 and thereby put to rest any suggestion that Justice Monteith will not be replaced and that the valuable work of the Family Court in North Queensland can continue.

Unfortunately Senator Ludwig, who represents the Attorney-General in this chamber, is not here tonight to hear this debate. I call on Senator Conroy, who is the minister at the table, to seriously listen to the issues of the Family Court in Townsville. Senator Conroy, could you please pass this on to your colleague Senator Ludwig, who was the Attorney-General when he came to Townsville prior to the 2010 election and promised the Townsville people that there would be a new appointment of a Family Court judge in Townsville. Many of us in Australia have got to the stage where we assume promises by Prime Ministers from the Labor Party and ministers from the Labor Party will never be honoured. Who can blame Australians for being cautious of promises made by Labor Party ministers when their own leader, Ms Gillard, promised prior to the last election there would be no carbon tax. We are now in the throes of implementing a carbon tax for Australia in spite of the Prime Minister's assurance and solemn promise that it would not happen. I leave that to one side.

It is important that the north of Queensland have a resident Family Court judge. Justice Monteith, I repeat, is retiring at the end of this month. Why the government has not announced a successor to Justice Monteith is of great concern not just to the legal profession but to all people in North Queensland. I repeat again that it is a fast-growing area of Australia. It has more than sufficient work in the Family Court to be assured of a Family Court judge permanently based in Townsville. I ask the minister at the table, who I assume is dealing with this legislation in the Senate chamber: why has the Gillard government not yet announced a successor to Justice Monteith just a few days before his retirement? I would ask you, Senator Conroy, to speak to Senator Ludwig, who as Attorney-General made this solemn commitment to the Townsville legal community and indeed to the wider Townsville and North Queensland community that there would be a northern based Family Court judge. I simply repeat: if there is to be another northern based Townsville judge, why has it not been announced just 10 days before the retirement of the incumbent northern Family Court judge?

I fear that my pleas are falling on deaf ears. For those who might be interested in this debate and are listening to the broadcast, there are two Labor Party people in the chamber tonight for this very important debate. The minister is reading his laptop and seems to be taking no interest. Perhaps I malign him. I would ask you, Senator Conroy, to take this message to your colleague in this chamber Senator Ludwig, and to Mr McClelland, and to give us some assurance in the next few days of who the successor to retiring Judge Monteith might be. Whilst I never expect much from the Labor government at the present time, I would hope that your advisers, Minister, will take these pleas on notice and perhaps come back to me within 24 hours and indicate just who the successor to the northern Family Court judge might be. With that plea, which I fear has fallen on deaf ears in this chamber, I indicate my support for the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 and my support for the submissions made by Senator Brandis on behalf of the coalition.

9:14 pm

Photo of Mary FisherMary Fisher (SA, Liberal Party) Share this | | Hansard source

I rise to support the coalition's position on the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. I do want to focus in particular on the amendments proposed in item 17 of this bill to section 60CC(2)(a). Before I do that, however, I want to make it clear that I do not profess to be any sort of expert in family law. I have had some experiences in court, some more recent that others, but I have certainly not been near and hope to never go near the Family Court or the Federal Magistrates Court exercising the family law jurisdiction. That said, I can read legislation, statutes and bills. On that basis, I have some questions, some of which I was fortunate enough to be able to ask during a Senate inquiry into this bill but which I was unfortunate, I think, not to have had answered through questions on notice during that inquiry. I think this Senate is even more unfortunate that I and my colleagues and the likes of Senator Xenophon and Senator Madigan have not been allowed the proper time and the proper process to ask about the very important issues that underlie not only this bill but family law writ large as implemented in this country.

Item 17, as I understand it—and I refer to the explanatory memorandum—says that the new subsection 60CC(2A) requires the court:

… when determining what is in a child’s best interests, to give greater weight to the primary consideration that protects the child from harm in cases if there is inconsistency in applying the considerations.

The explanatory memorandum goes on to say that the new provision will make it clear that:

… the two primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Obviously those are very important concerns. The explanatory memorandum then goes on to say:

Where child safety is a concern, this new provision will provide the courts with clear legislative guidance that protecting the child from harm is the priority consideration.

That is not the evidence that was given to the Senate committee. That was not the evidence that was reported in the Senate committee's report as a result of the inquiry—clear legislative guidance.

Professor Richard Chisholm told the committee that the intended provision was anything but clear. Whilst he did say that this provision would improve the law, he recommended an amendment to it. As of this moment, we do not know if the government have taken it up or not and we will not have the opportunity to debate it because of the time we do not have to speak on or deal with the bill. But Professor Chisholm, before saying, 'Well, okay, this provision will make it better than it is at the moment,' said that this provision was yet another technical complication. That is hardly clear, despite the government's explanatory memorandum. He went on to say that, with the new subsection, the decision maker will have to decide if there is an inconsistency between the two provisions. He went on to say that, if there is, greater weight must be given to the second provision—the safety of the child. But how much greater? He argues that the new provision is certain to increase the amount of complication and technicality relating to determining what is best for children. That is hardly clear legislative guidance.

Nor, despite clear legislative guidance being claimed by the explanatory memorandum, is it guidance according to the Family Law Practitioners Association of Queensland. It told the inquiry that, in its view, rather than providing guidance the proposed amendment contained in the bill mandates a court to give greater weight to the second of the primary considerations—that is, the safety of the child—in the event of there being a conflict between that and the benefit to the child of having a meaningful relationship with both parents. The Family Law Practitioners Association of Queensland told the inquiry in its submission:

Such a provision removes the Court’s licence to assess in each individual case the degree of risk, its probability or in the case of family violence its context in terms of frequency, intensity and recency in the determination of the weight to be given to such risk or harm.

It urges caution in terms of the legislation becoming:

… too specific, descriptive, prescriptive or presumptive with respect to the treatment of risk.

As far as we can tell, the government has done nothing about that concern expressed by the Family Law Practitioners Association of Queensland. In fact, it has flown in the face of it by maintaining the very provision that that association criticised and claiming in its recent supplementary explanatory memorandum that this provision provides clear legislative guidance. Well, poppycock!

As for the extent to which a child may be at risk of violence, there is nothing in the bill to make clear what is to be required by a court in terms of the second limb to which priority is now to be given—that is, the need to protect the child from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence. How is it not going to be as simple as one party to the earlier relationship alleging a concern about violence? As Family Voice Australia said to the committee:

The phrase “any inconsistency” virtually invites the court to ignore completely the requirement to consider “the benefit to the child of having a meaningful relationship with both of the child's parents” once it decides to entertain an allegation of any kind about abuse or exposure to family violence.

So there is nothing clear about this provision at all. It is a mandate, not guidance. It is an invitation for one party to a former relationship to make an allegation. Worse than that, when we pressed the government and officers of the Attorney-General's Department to provide the government's evidence of the need for this position and to demonstrate its case that this provision will fix whatever it says is the problem, all the department and the government could provide was the report by the Australian Institute of Family Studies, which was foreshadowed by the Howard government in implementing the earlier reforms in 2006—actually, the reforms in 2006, because this bill is no reform; reform in my book is usually good. The department, in answer to its question on notice, citing only the Institute of Family Studies report as evidence that the existing law needed change, cited findings that two-thirds of mothers and half of fathers separated since 2006 reported that their child's other parent had emotionally abused them. I thought it was the safety of the child that was paramount, not what happened to mum or dad.

The second so-called bit of evidence from the same report was that around one in four mothers and one in six fathers reported that the other parent had hurt them physically prior to separation. I make the same point: that is about the mums and dads; it is not the kids. The only one that gets close to the kids is this one: around one in five parents reported safety concerns associated with ongoing contact with a child's other parent. What does that mean? What is that by way of evidence? It is not hard to imagine in marriage breakups that one parent might want to allege concerns about safety in proximity of children from the former partner whom they liked a lot and with whom they are now largely disaffected.

Turning to my final point, which consolidates my concerns. I asked the department during the hearing:

What evidence do you have that item 17 of the bill will address that evidence and fix, for example, the concern that a fifth of parents have ongoing concerns about their child's safety?

Mrs Pirani from the department said:

I guess we do not know until the changes are made.

That is it. I guess the government does not know until the changes are made. My colleague Senator Mason talked about this bill really taking family law from being hell, or maybe it was the 2006 reforms that took it to being hell with hope. I reckon mums and dads will just want to hope like hell, because that is about all they are going to have, in my humble opinion, if this bill becomes law.

9:25 pm

Photo of Gary HumphriesGary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary to the Shadow Attorney-General) Share this | | Hansard source

I am very pleased to contribute to this debate on the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, such as my opportunity will be, given that the debate is to be truncated by the guillotine. Like Senator Fisher, I was a participant in the inquiry by the Senate Legal and Constitutional Affairs Legislation Committee into this legislation. I think that the legislation represents a very significant piece of change to the law. Like Senator Fisher I hesitate to call it reform, although I have to acknowledge that some parts of the legislation are valuable, do improve the state of the law and do make it easy to use for those people who require access to the Family Court. I echo the concerns of colleagues on this side of the chamber in this debate: significant changes in the law will be enacted by the Senate tonight in a shortened debate. We will not have time to consider amendments put forward by the Greens and by the coalition. We will not have key opportunities to consider issues in the legislation which are critical and which have been extensively debated in the public arena and in specialist circles and which were subject to intense debate before the Legal and Constitutional Affairs Committee or to consider issues around which there is a rich vein that the Senate ought to be explore. We will not deal with them tonight except by a simple vote on the floor of the Senate.

In her contribution, Senator Wright advocated for her amendments. Maybe she has put forward, on behalf of the Greens, some wonderful amendments to this legislation. I am afraid we will not get the chance to find out, because Senator Wright and her colleagues in the Greens have joined with the Labor Party to ensure that there will not be a committee stage on this bill. We will not have a chance to debate the amendments that the Greens are putting forward, wonderful though they might be.

I ask senators to consider what we are dealing with tonight. These amendments, in effect, go to the framework of family law in this country. The Family Law Act 1975 was a seismic change in the landscape with respect to personal relationships in this country. It was very significant legislation. We can all have different views about this, but it was undoubtedly an iconic piece of law reform. Tonight, we are dealing with that legacy. We are dealing with that great change in the law and the consequences and the developments that we have dealt with in the succeeding 35 or so years. But we are dealing with it tonight in an entirely unsatisfactory way. We are going to rush this through the Senate. We have important amendments to consider, but we are going to rush this through the Senate because of the deal that has been done between the Australian Labor Party and the Australian Greens.

I wonder what the ghosts of people like Lionel Murphy, Lionel Bowen, Bob Ellicott and others who were involved with those great debates would think, as they look down on this debate, about the way the Senate is dealing with that legacy legislation and the changes we are making to it, supposedly to bring it into contemporary use and to address the needs of 21st-century Australia. What would they make of it if they saw this debate going on? I do not think they would think very much of it, but that is the way it is being handled tonight.

I will address some of the issues in this legislation and point out what I believe would be some of the advantages were the Senate to adopt the amendments put forward by the coalition. I want to affirm, though, that the coalition very much values the essential elements of the legislation as it now stands and believes that our amendments underpin those important values—values that were described in the 2006 amendments moved by the then Attorney-General Philip Ruddock as the shared parenting reforms. We stand by a central feature of that legislation, which was that the paramount consideration of the courts was the best interests of the child when it came to issues relating to the care and maintenance of that child. We stand by the presumption, displaced only on substantial and exceptional grounds—for example, on the basis of what is in the best interests of the child—that there should be equal shared parental responsibility in the raising of a child and in the direction made by parents in the course of a child's life. We stand by the recognition in the law—again, I emphasise, subject to a child not being exposed to harm or having its interests otherwise detracted from—of the benefit to a child of having a meaningful relationship with both of its parents. Those principles are in the legislation. They have been there for some time. The level of emphasis placed on those principles has varied from time to time, but those values are core to the way that our Family Law Act works today, and we believe on the coalition side that they ought to be retained and not detracted from.

It is fair to say that the 2006 reforms did require the court to take into account a parent's willingness to abide by those principles dealing with the behaviour of a parent and the parent's attitude towards another party to the marriage or relationship—again, subject to the child's best interests. I heard a suggestion in the course of the debate by Senator Crossin that, for example, in some way the reforms of 2006 weakened or watered down the central focus on the court making decisions that were subject to the child's best interests. That, of course, is completely untrue. The paramount consideration before the court remains what is in the child's best interests. The extent to which other considerations can apply subject to that overarching qualification is what, in a sense, the 2006 reforms and this legislation debate.

Much of the bill enacts appropriate, balanced refinements of the law, but it is the view of the coalition that some of the amendments do undermine the shared parenting principles. Accordingly, the coalition has moved amendments to protect those principles—principles which we were responsible for in the first place. I want to touch on a few of those in a few minutes given I do not have an opportunity to put these issues in the course of a committee stage debate. The issue of a friendly parent provision reflects the fact that coalition senators in the course of the inquiry believed that the bill, to some extent, undermined the principles of shared parenting by repealing those provisions in existing paragraphs 60CC(3)(c) and 60CC(4)(b), which take account of a party's willingness to facilitate another party's involvement in the child's welfare. It is hard to represent those changes as anything other than an attack on that key principle of shared parenting. We were not persuaded that parties to proceedings are not disclosing concerns about family violence or child abuse for fear of being found to be an unfriendly parent. That was not the substantial weight of the evidence before the committee, in our opinion. We consider that the provisions should be preserved as they stand now, more or less, in order to ensure that that important principle is not detracted from.

On the question of a new definition of family violence, the coalition senators who took part in the inquiry certainly endorsed the objective of giving greater recognition to the breadth of behaviours comprising family violence in our community. However, we did not consider in this inquiry that the net should be cast so wide as to capture all human behaviours, which is what the proposed definition effectively would do. Professor Richard Chisholm, a former judge of the Family Court, gave very strong evidence that there were problems with proposed new subsection 4AB(1). I note that Senator Wright quoted approvingly of the evidence given by Professor Chisholm. I hope she listened, therefore, to the suggestion that we perhaps should consider a different approach towards this particular provision than the one the government is proposing to the Senate. Professor Chisholm said that the new subsection was overinclusive and captured any behaviour that caused a family member to be fearful. I think he gave the example of a family member who rushed into a room to say: 'Fire! Fire! Get out of the house now.' That kind of behaviour would be captured as being behaviour that would cause a member of the family to be fearful, even though it obviously is not appropriate to characterise that as something which could be called family violence. Coalition senators believe that such a provision undermines the objective of the bill as it makes no allowance for the intent of the party giving rise to this 'fear'. Professor Chisholm proposed an alternative provision, which I would commend to the Senate. We will not have a chance to debate those sorts of provisions because the debate has been truncated.

Other senators, including Senator Mason, have made reference to the absolutely preposterous proposal to remove section 117AB of the legislation that allows the Family Court to make an order for costs—a rare thing in the Family Court—where a party has deliberately come forward and knowingly made false allegations of abuse and family violence in the course of Family Court proceedings. We are not talking about allegations which are made which cannot be substantiated on the balance of probabilities. We are not talking about claims that are contested before the court which the court considers in all the circumstances to be made out or not to be made out. We are talking about a finding by the court that a party to the proceedings has deliberately set out to mislead the court by making false allegations of abuse or family violence. The court has the power under the present framework of the law to make an order for costs against the party making false allegations. It is preposterous that this bill proposes to take that power away from the Family Court on the basis that some people have misunderstood what that provision means or that some people have supposedly failed to make allegations that there had been violence in a relationship for fear that they might be ordered to pay costs.

Senator Wright said that there was evidence that this was a widespread problem. With great respect, that was not the evidence that was presented to the committee. The evidence was that it was rumoured to be an issue. Nobody could actually come forward to the committee and tell us that they actually had a case where it had occurred. No-one provided that evidence and the Family Court representatives themselves who came before the committee said that they did not have any evidence of such practices going on. On that basis, the government proposes to remove the capacity of the court to punish a party, in effect—not through an order to award a child to another party, not to take away from the best interests of the child, obviously—and to send the signal that deliberately false allegations should carry some consequence, should resonate through an order for costs. To suggest that that should be removed from the legislation is just outrageous. I think the government's approach to this issue is completely misconceived.

The coalition is also concerned about the timing of the commencement of the legislation. The Family Court itself expressed a preference for the substantive provisions of the bill to apply only to those applications filed after the commencement date of this legislation. Has the government done that? No, it has not. It is applying the provisions to earlier litigation, with the potential effect that parties will have to go back to the court and amend their pleadings before the court because the law changed after the proceedings had commenced. I would have thought that was quite an unsatisfactory state of affairs, but that is what the legislation the government is putting forward does. We do not have a chance to debate this issue properly, because again this amendment cannot be considered in the course of tonight's debate.

Photo of Stephen ParryStephen Parry (Tasmania, Liberal Party) Share this | | Hansard source

Order! The time allotted for consideration of this bill and the four other bills listed on today's Order of business has now expired. The question is that this bill be now read a second time.

A quorum having been called and the bells being rung—

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for the Defence Force and Defence Support) Share this | | Hansard source

Joe, did you hear my question? What happens with the northern judge that you promised would be appointed to replace the retiring judge?

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

That's a very interesting issue. Have you got the original documents?

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for the Defence Force and Defence Support) Share this | | Hansard source

I just need an answer. The retiring judge retires in five days time. Where's his replacement?

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

Quite frankly, with all due respect, I don't quite trust what you say. Do you have them with you?

(Quorum formed)

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for the Defence Force and Defence Support) Share this | | Hansard source

On a point of order, Mr Deputy President. I raised some questions in the debate which related to Senator Ludwig. He is trying to answer them. I move:

That so much of standing orders be suspended as would prevent me from moving a motion to allow Senator Ludwig to respond to the question on when the replacement for the northern Family Court judge is to be appointed.

Question put.

The Senate divided [21:46]

(The Deputy President—Senator Parry)

Question negatived.

Photo of Stephen ParryStephen Parry (Tasmania, Liberal Party) Share this | | Hansard source

The question now is that the bill be read a second time.

The Senate divided. [21:50]

(The Deputy President—Senator Parry)

Question agreed to.

Bill read a second time.

The question now is that amendments (1) to (6) on sheet BT208 circulated by the government be agreed to.

Government's circulated amendments

(1)   Clause 2, page 2 (table item 2), omit the table item, substitute:

[commencement of Schedule 1]

(2)   Schedule 1, item 17, page 7 (line 2), omit "If there is any inconsistency in", substitute "In".

[primary considerations]

(3)   Schedule 1, item 19, page 7 (lines 18 and 19), omit paragraph (3)(k), substitute:

  (k)   if a family violence order applies, or has applied, to the child or a member of the child's family—any relevant inferences that can be drawn from the order, taking into account the following:

     (i)   the nature of the order;

     (ii)   the circumstances in which the order was made;

     (iii)   any evidence admitted in proceedings for the order;

     (iv)   any findings made by the court in, or in proceedings for, the order;

     (v)   any other relevant matter;

[family violence orders]

(4)   Schedule 1, item 22, page 9 (line 21), omit "if there is any inconsistency".

[primary considerations]

(5)   Schedule 1, item 45, page 15 (line 9), omit "Subject to item 47, the", substitute "The".

[application of certain amendments]

(6)   Schedule 1, item 45, page 15 (line 11), omit "whether instituted before,", substitute "instituted".

[application of certain amendments]

Question agreed to.

The question now is that amendments (1) to (3) on sheet 7150 circulated by the Australian Greens be agreed to.

Greens circulated amendments—

(1)   Schedule 1, item 8, page 5 (after line 4), at the end of subsection 4AB(2), add:

  ; or (k)   an act or omission by a person engaging in the behaviour mentioned in paragraphs (a) to (j) that causes a child to be exposed to the effects of the behaviour mentioned in those paragraphs.

  [definition of family violence]

(2)   Schedule 2, page 21 (before line 1), before item 15, insert:

14A Subsection 61C(1) (note 2)

Repeal the note.

14B Section 61DA

Repeal the section.

14C Section 61DB (heading)

Repeal the heading, substitute:

61DB Allocation of parental responsibility after interim parenting order made

[shared parental responsibility]

(3)   Schedule 2, page 21 (after line 17), after item 17, insert:

17A Subsection 65D(1)

Omit "sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and", substitute "section".

17B Subsection 65D(2)

Omit "61DA (presumption of equal shared parental responsibility when making parenting orders) and".

[shared parental responsibility]

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for the Defence Force and Defence Support) Share this | | Hansard source

Mr Deputy President, I have a point of order. I ask how under the standing orders we can possibly vote on this when I have not heard the Greens move the amendment and explain what the amendment is. I may well want to vote for it but I have had no opportunity to hear the debate. I simply ask how could we possibly have—

Photo of Stephen ParryStephen Parry (Tasmania, Liberal Party) Share this | | Hansard source

Order! Senator Macdonald, resume your seat.

Honourable senators interjecting

Order! Senator Conroy and those on my left. Senator Macdonald, you have the call and you are raising a point of order.

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for the Defence Force and Defence Support) Share this | | Hansard source

I was raising the point of order that we are being asked to vote on some amendments moved by the Greens. I have not heard the Greens move the amendments. I do not know what the arguments are. I fancy that I may want to vote for them but I have not heard them debated. How can I possibly vote for an amendment that I have not heard debated.

Photo of Stephen ParryStephen Parry (Tasmania, Liberal Party) Share this | | Hansard source

There is no point of order. A resolution of the Senate was passed yesterday to orchestrate the facility of the bills to be put as they are currently being put. The question now is that amendments (1) to (3) on sheet 7150 circulated by the Australian Greens be agreed to.

Question negatived.

The question now is that items (2), (3), (6), (8), (18), (20), (26) and (27), (40) and (43) of schedule 1 stand as printed.

Question agreed to.

The question now is that amendment (11) on sheet 7149 circulated by the opposition be agreed to.

Opposition circulated amendment—

(11) Schedule 1, item 45, page 15 (lines 9 and 10), omit "items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43", substitute "items 1, 4, 5, 7, 11, 13, 17, 19, 21, 30 to 34, 37, 38, 41 and 42".

The question is agreed to.

Honourable senators interjecting

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | | Hansard source

A division is required.

Photo of Stephen ParryStephen Parry (Tasmania, Liberal Party) Share this | | Hansard source

I will go back to the previous question. A division is required. Ring the bells for one minute.

An opposition senator: This is a farce.

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Shadow Minister for the Arts) Share this | | Hansard source

I have a point of order, Mr Deputy President. You have called this vote for the ayes. You asked whether a division was required. There was no voice for the noes calling for a division.

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Minister Assisting the Prime Minister on Digital Productivity) Share this | | Hansard source

Yes, there was.

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Shadow Minister for the Arts) Share this | | Hansard source

No, there was not. You then moved on. If the government, who have obviously not been following the process tonight, have made a mistake and they wish the matter to be recommitted there is a manner of doing that. But the manner of doing that is not to shout down the Presiding Officer, as government senators have been attempting to do. If they want to recommit the division they should get up and explain themselves.

Photo of Stephen ParryStephen Parry (Tasmania, Liberal Party) Share this | | Hansard source

Thank you, Senator Brandis. There was a lot of noise in the chamber. Government senators as well as opposition senators have been making a lot of noise during all of the divisions and the reading out of what the divisions were. I am happy to give the government the benefit of the doubt and allow them to call the division because of the noes that they have called. A division has been called for; the bells are going to be rung for one minute. Clerk, have the bells been rung for one minute? No? Ring the bells for one minute.

The question is that amendment (11) on sheet 7149 moved by the opposition be agreed to.

The Senate divided. [21:59]

(The Deputy President—Senator Parry)

Question negatived.

In division—

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for the Defence Force and Defence Support) Share this | | Hansard source

Mr Deputy President, I raise a point of order on a very serious matter of etiquette in this chamber. There are two Labor senators sitting where I normally sit. They happen to be looking through my papers.

Government senators interjecting

Mr Deputy President, this is a very, very serious matter. When we move sides in this chamber you expect that you can leave your papers on your desk and not have them looked at by members of the other party. I would ask that the matter of Senator Collins looking through my papers actually be—

Honourable senators interjecting

Photo of Jacinta CollinsJacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | | Hansard source

Put it on the record!

Photo of Stephen ParryStephen Parry (Tasmania, Liberal Party) Share this | | Hansard source

Order! Senator Macdonald has the call, in an unusual circumstance, being out of his seat. Senator Macdonald.

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for the Defence Force and Defence Support) Share this | | Hansard source

I only paused then because Senator Collins was shouting at one of my colleagues. But I do raise this as a very serious matter of privilege that someone who is sitting in my seat because we have changed sides is actually looking through my papers that I left on my desk about the speeches I am going to make on the next four bills that are scheduled to be dealt with by this chamber tonight. I am very serious about senators from other parties looking through the papers of senators from the other party when they sit in their seats because of changing sides in divisions. I think I should ask that this matter actually be referred to the Privileges Committee.

Photo of Kate LundyKate Lundy (ACT, Australian Labor Party, Parliamentary Secretary to the Prime Minister) Share this | | Hansard source

Mr Deputy President, on the point of order there is absolutely no basis to the complaint that Senator Macdonald has made. I am sitting next to Senator Collins, and it is utterly false.

Opposition senators interjecting

Photo of Stephen ParryStephen Parry (Tasmania, Liberal Party) Share this | | Hansard source

Senators on my right, order! Senator Macdonald, in relation to your point of order, I say two things. I remind all senators that the courtesy and the conduct of this Senate over numerous years is that you do observe that protocol of not reading material on desks when divisions are in progress. That is the first matter. The second matter, Senator Macdonald, is I will discuss with the President your cause and if further action needs to be taken the President can make that decision and come back to the Senate.