Natasha Stott Despoja (SA, Australian Democrats) Share this | Hansard source

I rise on behalf of the Australian Democrats as their Attorney-General spokesperson, to address the Family Law Amendment (Shared Parental Responsibility) Bill 2006 and comment on what are significant—extremely significant in some cases—changes to the Family Law Act. The Australian Democrats recognise that the intention of this bill is to generate a less adversarial approach in some of these matters, particularly in resolving custody disputes and attempting to improve outcomes for families in the event of family breakdown. We acknowledge the government’s comment in the bill’s explanatory memorandum that these changes are intended to bring about a cultural shift in how family separation is managed—that is, away from litigation and towards cooperative parenting. We also recognise the process that this bill has been through prior to its arrival in this place for debate this evening, so it has quite a significant contemporary—if you like—parliamentary history.

The bill primarily implements a number of recommendations from the 2003 House of Representatives Standing Committee on Family and Community Affairs report on child custody arrangements, entitled Every picture tells a story. Following the release of that report, an exposure draft of the bill was referred to the House of Representatives Standing Committee on Legal and Constitutional Affairs, which reported last year. The bill was first considered by the Senate Legal and Constitutional Legislation Committee during a single-day hearing conducted, I think, on 3 March—this month. Despite the lengthy consideration of this bill by the House of Representatives committees, the Senate committee process was truncated. Certainly we believe the time allowed for consideration of this legislation was inadequate under the circumstances, particularly given the significance and volume of the legislation and the changes.

The Democrats do recognise that the chair’s report contains a series of recommendations for improving this bill. The Democrats do not believe that those recommendations go far enough. A dissenting report was therefore drafted and submitted by Senator Andrew Bartlett, the Australian Democrats family services spokesperson, and me on behalf of the Democrats and also by Senator Siewert on behalf of the Australian Greens. It is noted in the dissenting report that the 36-hour time frame that we had to comment on the chair’s report and recommendations and then provide our supplementary or dissenting report was an inadequate time for such a far-reaching piece of legislation. Despite the limited time available to comment, we did seek to elaborate on some key concerns that we felt were not adequately addressed in the chair’s report.

I might note at this point that one recommendation from the chair’s report that we resoundingly support in its current form is recommendation 7. This recommendation opposes the introduction of section 117AB, the provision allowing for the awarding of costs where an allegation of violence is proven to be false. We will move an amendment to this effect, to ensure that the intention of that recommendation is upheld. We have concerns that this provision would have the effect of further promoting the existing problem—one that I am sure many would agree exists—of underreporting of family violence. We believe that currently the bill as it is structured would have a deleterious impact on people reporting instances of family violence, and that is obviously something we want to prevent.

During the Senate committee process, evidence was provided by groups suggesting that without changes this legislation could actually have disastrous consequences for the safety of vulnerable family members, especially women and children in our community and especially where there is a history of family violence. In the submission by the National Council of Single Mothers and Their Children, evidence was provided which said:

There is significant research to show that domestic violence and child abuse are very real issues for many women and children, and that separation from an abusive partner can be the most dangerous time for women and children.

They go on to say:

The proposed reforms not only do not address how the family law system will be improved to protect women and children from ongoing violence and abuse following a separation, but in fact create further barriers to women and children achieving safety. The proposed changes take a punitive approach towards women and their attempts to escape domestic violence and abuse.

I want to be very clear about this. We agree with the position outlined by the opposition, that this bill has become politicised. Of course; it is always going to be, considering the political nature of some of the subjects under discussion and the political views perhaps driving some of the provisions. But we also recognise that the focus needs to return to what is important, and what is important is that better outcomes are created for children and for families. What is also important is to return that focus to protecting children and also people—specifically and usually women—who have been exposed to violence or abuse in a family setting and continue to be at risk post separation.

The issue of funding has been raised by a number of groups. Family Services Australia expressed concern during the inquiry about what they perceive to be inadequate consideration of approaches to ensure equitable impacts across target groups. There is a concern that the funding to be provided to supplement these changes will be insufficient, in particular to cater for those groups with special needs or those groups that cannot access services for any particular reason. The Democrats sincerely hope that in allocating funding the government hears the concerns of these groups and responds to them.

The Family Law Amendment (Shared Parental Responsibility) Bill 2006 will fundamentally change the way parenting orders under part 7 of the act are determined. Firstly, before a court can hear an application for a parenting order, with a few exceptions, parents will be required to adhere to a new regime of compulsory family dispute resolution. Then, if an agreement is not reached and a court application is made, the court is directed to apply a presumption of equal shared parental responsibility in determining parenting orders. If this presumption is upheld, the court must consider whether spending equal time or substantial and significant time with each parent is in the best interests of the child and reasonably practicable, and if it is must consider granting this distribution of time with each parent.

The bill will also change the way in which a child’s best interests are to be determined. The bill creates a new two-tier regime for the determination of a child’s best interests. It relegates the considerations currently in 68F of the old act to the position of additional considerations. It introduces two new primary considerations for the determination of a child’s best interests. These are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence.

As you have heard, a new definition of family violence will be introduced as a result of this legislation. The definition will become an objective one where the alleged victim’s experience will be tested by reference to a reasonable fear or apprehension in relation to their wellbeing or safety. The bill also contains a provision that will allow for cost orders to be made against a person found to falsely allege family violence. As I have mentioned, the Democrats have circulated a number of amendments, including ones that address these issues in particular. We have certainly addressed a number of issues that we hope will ameliorate some of the worst aspects of the bill.

The Democrats note the government amendments that passed the House during the last session. These amendments did address various issues of concern but they did not significantly alleviate these concerns, as articulated by groups providing evidence of the overall harmful effect this bill will have particularly on women and children, particularly those with a history of family violence and/or those who are disadvantaged in some way. One amendment that we are keen to make clear on the record has a positive effect is (7), which will allow for parties to be exempt from compulsory dispute resolution where their safety is at risk or where there is a risk that a child may suffer abuse. We consider that, subject to a number of further amendments which we will propose, this bill will be improved and more closely achieve its stated aims. As a caveat to this, we specifically note the difficulties posed by the existence of family violence or child abuse.

The issue of consent orders was raised during the committee inquiry by Relationships Australia. The discussion on this issue clearly demonstrated the need for further safeguards to prevent violence as a consequence of these changes. Ms Susan Holmes, representing Relationships Australia, a peak national counselling body, submitted:

... a lot of abuse is quite well hidden and it is a matter of reading the clues. I am very concerned about consent orders. A couple, where there is a lot of intimidation, can present consent orders.

                 …         …         …

I understand some judges and registrars who approve consent orders read them and some do not.

                 …         …           …

... with domestic violence, there is a real risk that consent orders might slip through without anyone identifying that this seems a peculiar arrangement.

I have used this example to demonstrate that this area of the law has many complexities, as we all know. These complexities, if not addressed, may actually mean greater tragedy than we have already seen examples of, following the breakdown of families. Protections for the vulnerable are essential. Protections need to be strengthened.

The Democrat key concerns are as follows. We consider that the presumption of equal shared parental responsibility as a starting point for determining where a child lives after parental separation generates more of a focus on parents’ rights than on what is actually in the child’s best interests. We should not be talking about rights and entitlements for parents; we should be focusing on the best interests of the child. We consider that the child has become objectified by this process, objectified in this discussion, and the issue is becoming one of entitlement.

I note the comments earlier from Senator Kirk and, I have no doubt, others. The use of the term ‘equal’ has been criticised widely. It is considered quite a divisive term that focuses more on parents’ rights than on the responsibility component. The Australian Democrats will move an amendment to alter the language of the bill to the term ‘joint parental responsibility’ which, as you have heard articulated in previous speeches, is a more appropriate reference and a less divisive term.

The Democrats also oppose the inclusion of the presumption of equal shared parental responsibility on the basis that it is unnecessary to apply a presumption as the court should have the child’s best interests as its primary focus. We are worried that we are losing focus on this. Why should we presume and ensure that the court works within that set of presumptions? The court should have as its primary focus the best interests of the child.

Evidence was provided in a submission to the Senate inquiry by Women’s Legal Services Australia. They claim that ‘the presumption of contact has permeated family law practice and led to a pro-contact culture that promotes the right to contact over safety’, which ‘undermines the child’s best interests in that it fails to properly prioritise the adverse effects on children of being exposed to abuse either directly or by witnessing the abuse of their parent’. These are serious, fundamental, complex, difficult issues, and they are not satisfactorily dealt with in this legislation. The effect of this presumption, when coupled with the court’s requirement to consider whether equal or substantial and significant time is arguably to create a de facto presumption and compounds the divergence from consideration of what is best for children. The Democrats have serious concerns about this. Women’s Legal Services Australia submitted to the inquiry:

... the provisions in sections 65DAA and 63DA, which require consideration or direct attention to specific types of parenting arrangements—namely, equal time or substantially shared time arrangements—derogate from a free and open assessment of what arrangement may be best for children in a specific case ...

The Democrats agree with this statement. We agree that this is the case under the bill before us as it is currently drafted. We acknowledge that a stable environment encourages healthy child development. However, there has been no conclusive evidence to prove that a presumption of equal time rather than a consideration of the child’s unique circumstances in each case would be of any benefit to a child. And surely that is the focus here.

The new structure for determining what is in a child’s best interests includes conflicting primary requirements that a child have meaningful relationships with both parents and that they should be protected from harm. We note the difficulty caused by situations where the child may have an abusive or violent parent. The additional considerations forming part of this structure resemble old provision 68F but now include a ‘friendly parent provision’: a willingness by one parent to facilitate a close relationship with the other parent. This provision is problematic, as the requirement that a parent facilitates a relationship between the child and a potentially abusive parent has the potential to override the safety of the child.

The Democrats also object to the fact that children’s views have been relegated to additional considerations. The Law Society of South Australia has noted its opinion:

The Bill is extremely parent-centric and in no way supports the child or young person in negotiations or proceedings.

I thought that we were leaving that culture behind. I thought that we were supposedly strengthening and supporting the rights, views and interests of children, not framing legislation that diminishes them. We understand the intention of these provisions but we consider the structure in 68F the preferable option for truly determining a child’s best interests. The requirement that mediators will have to judge if parents are making a ‘genuine effort’ to mediate is also problematic. This means that their role is no longer that of a traditional mediator who remains impartial and neutral.

I have referred to the issues surrounding funding for services provided for by this legislation. The Democrats also note the concerns around appropriate accreditation of staff providing these services. We hope that this will be an equitable and transparent process focused on providing the best outcomes for families.

We will move an amendment to address this and other concerns. Consideration especially needs to be given to disadvantaged groups. These include people in remote regional areas, people with culturally and linguistically diverse backgrounds, Indigenous people, people with health and mental health issues, those on low incomes and those who cannot access technology for financial or other reasons. The Democrat amendment proposes to review the impact of this bill on these groups within two years of the commencement of the bill, and I hope other parties will consider that.

The new definition of family violence proposed by this bill, as I have said, requires an objective assessment of whether or not the victim’s fear is reasonable. We believe this undermines the known facts provided by those with experience and understanding of domestic violence. The experience is that often only the victim knows the signs.

The Democrats propose an alternative definition of family violence. It is modelled on the Western Australian domestic violence legislation, which removes the objective assessment and includes intimidating behaviour. We will propose an amendment to retain the current structure in 68F of the act in the new 60CC, in relation to determining the child’s best interests, so as to remove the two-tiered approach to assessment. We will also seek to remove from the bill the presumption of equal shared responsibility and the equal, substantial and significant time considerations, so that cases will continue to be judged on the best interests of the child—that is, on the child’s unique circumstances.

We want to ensure that there is greater consideration of children’s needs in this bill. We have proposed a series of amendments to return the focus to children. The focus needs to return to children and their best interests. The focus should be on parental responsibilities rather than rights. If the Democrat amendments are supported, which we believe will improve this legislation, then we will support this bill as a piece of legislation that hopefully will move forward and improve the family law system.