Ken Wyatt (Hasluck, Liberal Party) Share this | Hansard source

I acknowledge the comments made by my parliamentary colleague the member for Adelaide. Many of the points that she made are extremely important in this debate. I rise today to speak on the proposed amendments to the Family Law Act through the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. There is no doubt that we all condemn violence towards children and partners in a relationship, particularly women. This is not a debate about that. This is a debate around several proposed changes to the act which have come about after several reports were released last year, including the Australian Institute of Family Studies' Evaluation of the 2006 family law reforms, Professor Chisholm's Family Court's violence review and the Family Law Council's submission, Improving responses to family violence in the family law system.

Essentially, this bill seeks to include a provision to give effect to the UN Convention on the Rights of the Child, extend the definition of family violence, extend responsibility for inquiry and reporting into allegations of violence and wind back the reforms introduced by the Attorney-General Philip Ruddock in 2006. It also repeals provisions relating to the facilitation relationships with separated parents and costs orders with respect to false allegations.

The 2006 Ruddock reforms put the best interests of the child at heart. A child in a situation such as divorce has a right to be safe and to maintain a relationship with both parents where possible. The coalition believes it is best for separated parents to agree on what is best for their children and not to be dictated to by government. And the child should have the ability to build and maintain a strong relationship with both parents. It is a very fine balancing act to get family law right, and the government needs to consult with all family groups.

It is not surprising that when the Gillard government released an exposure draft of the bill last year that there was a widespread community response. The radical changes did not sit well with some in the family law community and thus the current bill was proposed by the government. We are also in the middle of an inquiry by the Senate Legal and Constitutional Affairs Legislation Committee on this very bill. They are due to report their findings on 23 June and this inquiry has also received a number of responses. At my last count there were 210 unique submissions, of which there was a submission from an organisation in my electorate of Hasluck. The Gosnells Community Legal Centre submitted a letter to the inquiry outlining not only its general support for the bill but its recommendations to further strengthen the reforms commenced in 2006. I thank the Gosnells Community Legal Centre for making its views known in such a topical debate.

I know that family law affects a number of my constituents in Hasluck and the Gosnells Community Legal Centre does an outstanding job of representing and assisting people throughout the city of Gosnells. Section 60CA of the Family Law Act, entitled 'Child's best interests paramount consideration in making a parenting order', states:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

This bill proposes to insert a new subsection into section 60CC which is to prioritise the rights of the child. This is quite unnecessary as section 60CA, which I read before, clearly puts the child first in making a decision in regard to the parenting order. The government also purports that this will give effect to the UN Convention on the Rights of the Child. The explanatory memorandum states that this inclusion is to reinforce the fact that part VII of the act should be interpreted under the UN convention. However, what it does not state is the fact that when the act departs from the UN convention the act will prevail. Therefore, the addition of this amendment will not actually override the act nor incorporate the convention into domestic law. Thus, one would have to wonder what is the purpose of this amendment. Why include it if the act already deals with the exact issue and will not actually impact upon areas of domestic law? The child should always be the centre of decisions made in respect to a parenting order and the 2006 reforms ensured that this was the case.

The bill goes on to extend the definition of family violence. It is good to see that sometimes the Gillard government does listen to its constituents and key stakeholders because when the exposure draft of this bill was released there were a number of people concerned that the new definition could lead to issues in an everyday marriage being defined and argued to be family violence. Yes, family violence does affect people emotionally, psychologically and economically, but the government expanded this to the extent that a simple marital argument or action that one party deemed to be unfair could be defined as violence. Whilst it is good to see that the government did conduct a consultation process and actually listened to those Australians who made an effort to have their say, the new definition is unfortunately no better. The newly proposed definition of family violence may weaken rather than strengthen the concept. Whereas the existing definition required a reasonable fear for the family member's wellbeing or safety, the new definition is both vague and an overextension of the government to try and categorise what family violence actually is. The new definition states that family violence is:

… violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

It then attempts to qualify this by listing 10 behaviours which would qualify under the new definition. The list, in which there is no doubt that the behaviour is not only unreasonable but in some cases criminal, still leaves open the question of whether it frames the definition suitably.

One facet of this bill which is a step in the right direction is the broadening of the reporting requirements of cases of family violence and child abuse to 'interested persons' rather than just the parties to the proceedings. Therefore, this will include children's lawyers, dispute resolution practitioners, family consultants and family counsellors. Response to child safety concerns should always be improved and built upon. Greater accountability and participation is very much welcomed. The biggest concern of this amendment is the repealing of the 'friendly parent' and 'costs orders' provisions under the current Family Law Act. These were key reforms under the former Attorney-General Philip Ruddock in 2006 and, whilst the reforms have been subjected to a sustained ideological attack, all indications are that the reforms have been very successful and ultimately supported. The 'friendly parent' provision of the current act is defined under section 60CC(3)(c) as being:

… the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent …

This ultimately means that the family courts will have to consider the enthusiasm of one parent to work with the other to establish a relationship with the child. Whilst the government claims that the provision discourages parents' disclosure of family violence for fear of being deemed unfriendly, the current act deals with this in section 60CC(4).

The bill will repeal section 60CC(3)(c) 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, to spend time with and to communicate with the child and the extent to which each of the parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child. This is already in the act in section 60CC(4). The failure of parents to be encouraged to foster a relationship between a child and a separated parent is a major issue in the family law courts and could be found to be an emotional abuse in some cases.

Another major element of the current act is the repealing of section 117AB, which provides for mandatory costs orders where a party knowingly makes a false allegation or statement in the proceedings. I know of several families in Hasluck who have had to deal with this section of the act and it has actually protected the child and the other partner from having to bear the cost of defending against a false allegation. Without mandatory costs for knowingly making a false allegation of family violence, it opens up the courts to added cases and will impact adversely upon families. The reasoning behind repealing this section of the act is that the cost orders supposedly discourage individual allegations of family violence for fear of having to pay the court costs if found to be false. The test for having to pay mandatory costs orders is stringent. It applies to knowingly providing false evidence, thus could not arise from evidence that was not proffered in the circumstances, or was given recklessly or without belief. If ever a court were to make such a finding—that one party knowingly provided false evidence—then there is no reason why a costs order should not follow. False accusations are not unknown and sanctions should apply. In the debate around costs orders we should not forget that the safety of the child needs to be paramount. By removing the imposition of costs orders on false allegations, the government is opening up children to the added burden of having to go through extra court processes and angst between parents when a false allegation is made. If there is no disincentive to making false allegations it is much easier to accuse your partner of family violence without any evidence or deterrence. There will be people that will forsake the truth for their own personal gains. The child and the truth are paramount to this argument.

By removing costs orders there are three parties that will be affected: firstly, the child or children in question. Having to go through the courts to determine whether the family violence allegation is in fact true or not is a psychological stress that is unwarranted. In the context of the allegation being false, why should the person making the allegation not be reprimanded? This one person, who knowingly made a false allegation and provided false evidence, will not have to bear the costs of the court proceeding and there is no deterrence to adding this stress onto their child. It may sound like I am implying that once this bill passes, every disaffected parent will go out and make false allegations of family violence, but that is not what I am advocating. I am speaking for those women and men who may find themselves in these situations.

This brings me to the second party affected: the parent who has had the false allegation made against them. This is not only an emotional and psychological blow to them but an added financial cost to defend themselves against an allegation that is not even true! How fair is that? Divorces are always costly exercises, especially where there are children involved. Financial costs added by defending oneself against false allegations can adversely affect one's willingness to work with the other parent towards what is best for the child and for their employment and future prospects.

I mentioned previously that there are three parties affected by the repealing of costs orders, and the final party is the courts. Family law courts are already overburdened and stretched to their limits. If there were to be an increase in false allegations which the courts must act upon, this will add increased stress on the services provided by this institution. Yes, courts should investigate all allegations of family violence and, as I have previously stressed, the interests of the child are paramount in this process, but having no deterrence for making false allegations is a step in the wrong direction. We, as a parliament, should foster a context of resolution and negotiation, not one that is adversarial between parents. Once it becomes adversarial then this can easily escalate into verbal battles and potential violence, increasing the risk to the child's physical, social and emotional wellbeing.

I wish to reaffirm my commitment to any sensible proposals which reduce the exposure of children to abuse and family violence. The coalition's record indicates that we take this issue very seriously. Whilst some of the amendments proposed are worthy of support, clauses 18, 19, 20 and 43 of the bill, which refer to the repealing of the 'friendly parent' and 'costs orders' sections of the act, are particularly worrying. Proceedings to do with family law are some of the most bitterly contested and difficult processes to get right. I look forward to the recommendations from the Senate inquiry and hope that they are a step in the right direction for Australian families.

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