Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

I would like to thank honourable members for their contribution to the debate. I will just pick up on some of the concluding comments of the previous speaker. I note that these amendments are not based on the view of a minority, tiny or otherwise. The amendments are based on four significant reports, including one by the Australian Institute of Family Studies which was commissioned during the period of the former government, another by the Family Law Council and another by Professor Richard Chisholm after some very distressing events. Since the initial draft was prepared, the amendments have also been supported by the Australian Law Reform Commission and the New South Wales Law Reform Commission in its report, which resulted in particular in further reflection upon the definitions of family violence and abuse.

We have essentially introduced these amendments to help achieve safer outcomes for children caught up in the family law system, and that should be the important focus and I will stress that. Over 15 years in parliament I have spoken with many everyday Australians who are wedged in difficult and complex family law disputes. I have listened to their stories, I have asked questions and at times I have heard some pretty confronting answers, including with respect to some high-profile cases. I have received a great deal of advice from a range of family law professionals and experts, from people who work in the system every day, and I have referred to those reports that essentially provide the basis for these reforms.

I must say, despite the recognition of and concern about family violence that has been reflected by all members, I have been disappointed with the opposition's response. The government categorically rejects amendments that would undercut key measures to protect vulnerable children and families in our family law system. Family law is obviously a complex and fraught area, but facts are crucial if we are to address those matters that have contributed to families being at risk of violence and abuse. With respect, I think it is somewhat arrogant of those opposite to assume to place themselves in the position of experts based on anecdotal reports to them, ignoring at the same time those four reports to which I have referred. I would question, with respect, whether any member on the other side has read or substantially read those reports or summaries of those reports.

Indeed, we believe those opposite have adopted an incorrect frame of reference—that is, a focus on the rights of parents, whether they be from fathers groups or mothers groups. We say, and we make no apology for saying, that the frame of reference in these amendments is quite clearly the rights of children. For instance, when considering the confronting topic of family violence, the member for Bennelong focused on the parents' right to seek reduced child support. When speaking about factors relevant to the child's best interests, the member for Forrest said that the bill basically reverses the presumption of innocence. When speaking about the mandatory cost order provision, the member for Cowan talked about 'trampling on the rights of the party'—the party being the parent. This bill is a family law bill; it is not a child support bill and it is not a criminal law bill. It is a bill concerned with ensuring that parenting arrangements for children are safe. It is not about the rights of mothers groups or the rights of fathers groups, as I have said. It is about the rights of those most vulnerable in our community: our children. I want to continue stressing that point. It is not about impeding safe parenting relationships in any way, shape or form. They are not at risk. We recognise they are the majority of relationships, but there are nonetheless a substantial minority where children are at risk, and we are neglectful in our responsibility to those children if we do not act in the face of those four very substantial, very well-researched reports.

As I understand it, the opposition specifically opposes the new definition of family violence. This is a keystone of the reforms. The bill greatly improves the existing definition because it better captures harmful behaviour. It is more descriptive and requires decision makers to closely consider the personal experience of the child growing up in a family riddled with violence. Family violence is not generic or superficial. It is individualised and gravely insidious. A number of members said that this is substantially irrelevant to the work of the courts because courts only consider five per cent of cases, but that is why we need such a detailed and comprehensive definition of both violence and abuse to be in the act: it is those definitions that provide the benchmark which over time changes culture, which the courts by the implementation of the legislation will assist in developing.

The government specifically rejects any proposal that would require family violence to be hinged on, for instance, how a reasonable person might react in a particular situation or what the violent perpetrator might have intended. People should not be afraid that their experiences will be dismissed. They should not have the fear of losing their children or suffering prejudice in proceedings if they speak up about their concerns. The proposed definition is closely aligned, as I have indicated, to the recommendations of the Australian and New South Wales law reform commissions. We believe, as a result of public submissions, that it has received strong public support.

The opposition also opposes changes to the cooperative or friendly parent provisions. It says it is concerned that the reforms are not evidence based. I have referred to the evidence that is the basis of our reforms. The member for Stirling in particular argued there is no credible evidence suggesting this provision is a disincentive to disclosure. He said the Family Law Council described criticism of the provision as 'gossip' and, quite astonishingly, the member for Berowra agreed with him. With great respect to those two members, that is a gross misrepresentation of the council's report and advice. In its family violence report, the council specifically advocated the repeal of these cooperative parenting provisions. Why? Because they are a disincentive for people to report their concerns of violence and abuse, and that is what the government is addressing in its amendments. In its submission to the Senate Legal and Constitutional Affairs Legislation Committee, for instance, the council said:

… there is considerable concern that a vulnerable parent may elect not to disclose family violence or child abuse for fear of being considered an 'unfriendly parent'.

I am very concerned that the opposition views that considerable concern voiced by the council for the victims of family violence as gossip. While we play politics in this House, when there is such a substantial body of evidence surely we owe it to the children of this nation to approach this debate at a far more sophisticated level.

The member for Stirling also claimed that the Australian Institute of Family Studies report Evaluation of the 2006 family reforms did not provide any basis for the reforms that the government has proposed. That evaluation was instigated by the former government. The opposition must not have read that report by the Australian Institute of Family Studies, including its submission to the Senate inquiry into the bill, which states

… two specific aspects of the current legislative framework operate to discourage allegations of family violence from being raised: FLA s60CC(3)(c) ("friendly parent" provision) and s117AB (costs orders for knowingly made false statements). This evidence supports the repeal of these provisions in the proposed Bill.

So it is quite inappropriate for the opposition to mislead the House regarding the nature of those submissions.

I thank the member for Stirling for drawing the attention of the House to the report of Professor Richard Chisholm and to his recommendations about amendments to the 'friendly parent' provisions—that is, if a parent is deemed to be uncooperative by raising allegations of concern about violence and abuse, they may potentially, under the current legislation, be deemed to be an uncooperative or unfriendly parent, suffering prejudice in their submissions to the court. As submissions from key stakeholders show, both to the public consultation on this bill and the Senate committee's current inquiry, those who work in the system and family law experts all support this proposal because it is based on such solid evidence.

In terms of the issue of costs orders, the opposition has argued that the government is opening up the way for false allegations of violence to be made in court. This is nonsense and so too is the claim that the evidence relied on is misleading. Professor Chisholm recommended this repeal, and his submission to the Senate inquiry stated that the provision seemed to operate as a disincentive to disclosing family violence and did not appear to have had any beneficial effect—and I remind honourable members of the timing of when Professor Chisholm was engaged to provide advice to government. The Family Law Council said there is no evidence that section 117AB was achieving its purpose of discouraging false allegations of violence. The repeal of section 117AB has strong public support, including from the legal profession and key stakeholders in the family law community. The opposition said that if a court were prepared to make a finding that a party had knowingly given false evidence there was no reason why a costs order should not follow. I could not agree more. The act already provides precisely for that and it provides disincentives for making a false allegation or false denial in parenting matters through its existing powers in section 117 of the act. It already has that discretion and that power.

I turn to the opposition's objections to including a reference to the United Nations Convention on the Rights of the Child as a specific object of part VII of the act. The convention sets out many rights of children, such as considering the child's best interests and ensuring that children are protected from physical and emotional harm. The opposition seems to have forgotten that the bill is about family violence and abuse as well as advancing the 'best interests' principle, and this measure, we believe, will fortify the focus on the rights of the child and the rights specifically of children to live free from harm and the fear of harm. Recognising the convention in the act will provide a strong statement that we as Australians are committed to protecting children, particularly when relationships break down. I have had very strong support from the court for including this object in the act. Incidentally, I suggest that the member for Hasluck re-read the explanatory memorandum at paragraph 23, page 5. Perhaps he made an innocent mistake when he asserted, wrongly, that this document does not say that the act prevails over the convention. It greatly concerns me that the opposition has apparently ignored the significant body of evidence that calls for these reforms.

In concluding, the bill takes positive action to ensure the safety of children and to ensure their best interests are prioritised. I have said time and time again that the government supports shared parenting but only where this is safe for the child. The bill has been the subject of extensive public consultation, and I thank stakeholders for their contributions to the development of the bill. We as a government are proud to have introduced this bill and we will be even prouder when it becomes law and makes a difference for the children and families who are faced with family violence and child abuse. The very substantial body of evidence shows that these reforms are needed, and this government will do everything we can to make the system work better for these vulnerable families and children. A urge the opposition to do the same. I commend the bill to the House.

Question agreed to.

Bill read a second time.

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