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The Hon. CHRISTINE ROBERTSON [2.31 p.m.]: I am pleased to commence debate on the thirty-third report of the Standing Committee on Law and Justice, entitled "Impact of the Family Law Amendment (Shared Parental Responsibility) Act 2006". The report was tabled with the Clerk out of session in late November last year. The former New South Wales Attorney General, the Hon. Bob Debus, MP, and the former Minister for Community Services, the Hon. Reba Meagher, MP, referred the inquiry to the Standing Committee on Law and Justice on 19 September 2006. The issue was brought to the attention of the committee and the Ministers by the Opposition Whip in the other place, Daryl Maguire, who wanted the Parliament to examine certain issues. The inquiry's terms of reference were formulated through consultation with Mr Maguire and the Ministers' offices.
The inquiry addressed important and sensitive issues, and I appreciate the efforts of my fellow committee members in producing a consensus report. The committee was asked to inquire into, and report on, the impact of the Commonwealth Family Law Amendment (Shared Parental Responsibility) Act 2006 on women and children in New South Wales and on the operation of court orders that prohibit the perpetrators of family violence from coming into contact with their families. The amendment Act continues the Commonwealth Government's attempt to encourage parents who are separating to use non-court based dispute resolution rather than costly and time-consuming litigation. While the committee supports the general aim of moving away from litigation in family matters, we are concerned that the unintended effects of the latest amendments to the Commonwealth Family Law Act 1975 may result in harm to women and children in New South Wales.
The possibility that the amendments may expose women to family violence and may subordinate the best interests of the child to the interests of the parents were the most concerning elements of our inquiry. The committee heard evidence from a range of experienced family law practitioners, including representatives of the Law Society of New South Wales, the Combined Community Legal Centres Group, Women's Legal Services New South Wales and several private practitioners. The committee also heard from New South Wales government agencies such as the Legal Aid Commission of New South Wales and the Attorney General's Department.
When the inquiry was conducted late last year the amendments had only recently come into effect. While the committee made some recommendations that addressed the more immediate implications of the changes, the evidence provided by witnesses made it clear that the issues should be revisited in the future. The committee therefore recommended that the New South Wales Attorney General instigate a future review that will allow the full impact of the changes, relevant research and decisions of the full court of the Family Court of Australia to be considered. I turn now to the detailed issues examined in the report. I will also explain the committee process. The committee met to discuss the inquiry's short time frame. We accepted the terms of reference very late in the electoral cycle and were concerned about whether we would be able to do justice to the report.
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Interruption]
I am most disappointed that committee members are not listening to my contribution. The committee decided to advertise for and accept submissions from as many persons and groups as possible and to hold a one-day hearing. This is an incredibly sensitive issue and some groups found it difficult to meet that short time frame. However, the process enabled the committee to get a good overview of the situation. Some groups expressed the strong wish to make representations to the committee. Mr Maguire arranged for particular witnesses to give evidence at the hearing and committee members asked questions on behalf of other groups. As a consequence the process was as equitable and fair as we could make it in such a short time.
One of the key amendments to the Act is a requirement from 1 July 2007 that parents attend family dispute resolution and make a genuine effort to resolve a dispute before applying for a parenting order through the Family Court of Australia or the Federal Magistrates Court. Family dispute resolution is guided under the Family Law Act towards agreement on a parenting plan, which is a non-binding written agreement between parents relating to parenting responsibilities post-separation. The requirement to undergo family dispute resolution does not apply when there is family violence or abuse, or the risk of family violence or abuse. It was clear from the evidence that there are several areas of concern in relation to the family dispute resolution process established by the amendment Act and the Commonwealth's associated family law reform agenda.
Of particular concern is the fact that family violence may go undetected if screening tools used at family relationship centres and by accredited family dispute resolution practitioners are inadequate. A number of submissions to the inquiry highlighted the power imbalance that may occur in dispute resolution as a result of a failure to identify family violence. The committee therefore recommended that the New South Wales and Commonwealth governments work together to ensure that staff at family relationships centres are trained suitably and use appropriate screening tools to identify cases involving family violence.
In addition, given that a number of New South Wales government agencies deal with family violence issues, the committee considered it appropriate for these agencies to establish links or consult with family relationships centres to assist New South Wales families with family violence issues. In this regard, the committee recommended that the New South Wales Government work with the Commonwealth Government to establish protocols to enable government and non-government agencies in New South Wales to assist family relationship centre staff in dealing with cases involving family violence.
Given the serious implications of failing to identify and address family violence, New South Wales government agencies have a responsibility to help women and children meet the requirements to prove family violence in cases when it is known to exist. The committee therefore recommended that the New South Wales Government develop protocols for involving the Department of Community Services in assisting individuals within families to satisfy the requirements to prove family violence when it is known to exist. Under the amendments, parties attending family relationship centres will not be legally represented and staff at family relationships centres will not provide legal advice.
The committee believes that legal advice, and the availability of legal representation during the family dispute resolution process, is important to safeguard the best interests of women and children. The committee considers that steps should be taken by the Commonwealth Government to offer New South Wales residents the alternative of lawyer-assisted mediation. Further, the committee notes that the alternative dispute resolution service provided by the New South Wales Legal Aid Commission is an appropriate mediation model. Consequently, the committee believes that the Commonwealth Government should take steps to adopt this model at its Family Relationship Centres in order to ensure satisfactory mediation outcomes.
The evidence clearly showed that Aboriginal women and children are likely to be particularly affected by the amendments, given the high incidence of family violence in indigenous communities. As a consequence, indigenous communities need access to services that are culturally sensitive. The committee is concerned that the Commonwealth provision of additional funding for indigenous services at the Lismore Family Relation Relationship Centre is insufficient to cater for the needs of the State's entire indigenous population. The committee therefore recommended that the New South Wales Government negotiate with the Commonwealth Government to secure additional funding for indigenous services at all family relationship centres located in areas with significant Aboriginal populations.
The committee was advised that there will be a maximum of just 11 family relationship centres in New South Wales once the requirements for compulsory dispute resolution take effect in mid 2007, with a further 10 centres to be opened in 2008-09. This number is likely to be inadequate to service a population of more than six million people. Further, the committee has serious concerns that a small number of family relationship centres, and their sparse distribution across the State, will significantly disadvantage rural and regional populations.
The committee concluded that the Commonwealth Government should adequately resource the infrastructure to ensure everyone has easy access to family relationship centres. The committee recommended that the New South Wales Government discuss the number and location of family relationship centres with the Commonwealth Government and request that future decisions about the location of family relationship centres be made in conjunction with the relevant New South Wales government agencies. This would ensure that decisions are based on accurately identified population and demographic need.
Another significant change implemented by the amendment Act is the requirement that the courts apply a legal presumption of equally shared parental responsibility whenever a parenting order is made. This means that where possible both parents will have an equal role in making decisions about major long-term issues involving the children. This presumption does not apply in cases where there are reasonable grounds to believe there is family violence or abuse. In addition, the Family Law Act now requires the court to consider whether spending equal time with both parents is practicable and in the best interests of the child. If the court finds such arrangements are in the best interests of the child, and reasonably practicable, then it must make an order that the child spend equal time with each parent. If the court does not consider this appropriate it must instead consider whether the child should spend substantial and significant time with both parents.
Several inquiry participants expressed concern that the introduction of a legal presumption of shared parental responsibility and consideration of equal time or substantial and significant time is promoting the rights of parents at the expense of the best interests of the child. The committee formed the view that the full impact of the new presumption may take a while to emerge. The committee's recommendation is that a further review be undertaken to address this concern.
The evidence showed a lack of community understanding about the implications of the amendments, particularly the presumption of shared parental responsibility. The committee concluded that individuals in New South Wales may be seriously disadvantaged if they undertake mediation without full appreciation of their rights and responsibilities under the Family Law Act. The committee recommended that a public education campaign needs to be undertaken in New South Wales to inform parties in divorce and separation proceedings of the impact of the amendments.
The committee also examined the requirement that the court must order a party to pay some or all of the costs of the other party if it determines that a false allegation or statement has knowingly been made in the proceedings. There is also a friendly parent consideration, where the court takes into account the willingness and ability of parents to facilitate a relationship between the other parent and the child. In addition, the definition of "family violence" now includes an explanatory note on the meaning of "reasonable" in relation to a person's reasonable fear of violence, creating a stricter definition than exists in New South Wales courts for apprehended domestic violence orders [ADVOs]. The evidence indicates that these amendments will increase the difficulty of proving the existence of family violence.
The committee heard that the combination of the stricter definition of "family violence", penalties for false accusations and the friendly parent consideration is likely to act as a significant deterrent to women disclosing the existence of family violence during divorce or separation proceedings. This is one of the issues that led to the committee's overall recommendation that the Attorney General conduct a future review of the impact of the amendment legislation. The report also provides an analysis of the impact of the amendment Act on the operation of court orders to prevent family violence perpetrators coming into contact with their families.
The amendment Act provides that only contested or final apprehended domestic violence orders are considered in the determination of parental responsibility. Many inquiry participants expressed concern that this may lead to an increased number of applications for ADVOs, and an increase in the number of ADVOs that are defended, with consequences for local court resources. The committee believes it is important that the New South Wales Government monitor the impact of these amendments on the incidence of ADVOs, and associated resourcing issues for State courts and support services.
The committee recommended that the New South Wales Attorney General's Department monitor the incidence of ADVO applications, and the incidence of defended ADVO applications, and conduct research to determine the relationship between the amendments to the Family Law Act and any change in incidence. This research should be used to inform resourcing decisions for State courts and associated support services. The evidence clearly showed scepticism about the effectiveness of the changes covering those situations where there is a conflict between federally based Family Court orders and state-based family violence orders. There is scepticism in particular about the likelihood that State courts will use the powers they have under the Family Law Act to vary Family Court orders.
The committee is concerned that, unless magistrates and police prosecutors can confidently use these powers, situations may arise where women and children are at risk of family violence. The committee therefore recommended that the New South Wales Attorney General's Department work with the Chief Magistrate to develop and implement a practice note to provide guidance to New South Wales magistrates. The committee recommended that the information contained in the practice note should form the basis of training provided to New South Wales police prosecutors.
In this inquiry the committee also examined the enforcement of Family Court orders in New South Wales. Ideally, Family Court orders require cooperation between parents who have been through a stressful and possibly acrimonious court proceeding. The committee believes that the existing Family Court mechanisms for enforcing Family Court orders, and the extent of the involvement of police, are adequate and appropriate for the resolution of disputes. There are further issues but, in conclusion, the evidence presented to the committee showed that the changes brought about by the amendment Act are likely to have a significant impact on the women and children of New South Wales. Some of these impacts are immediate, while the full extent of others will be played out over time. The report sets out a range of recommendations.
I thank all members of the committee. As usual, the committee operated positively to arrive at an outcome for the relevant persons. I especially thank the secretariat for doing a particularly good job in researching and producing this report.
The Hon. PENNY SHARPE (Parliamentary Secretary) [2.46 p.m.]: I support the motion to take note of this report. This inquiry arose from widespread concern about the Commonwealth Government's latest amendments to the Family Law Act. These amendments are a radical departure from the principle that has always put the best interests of the child firmly at the heart of any decision made in relation to custody. I have grave concerns that the new changes will bring harm to women and children in New South Wales.
While the inquiry determined that the full impact of the changes are yet to be determined, the report highlights a number of issues which require action now and further review. I fully support the recommendations made by the committee and congratulate it on being able to reach a consensus report. I also note that the Government's response has very carefully considered the potential impact of this law and the ramifications for women and children in New South Wales. I am pleased that the Attorney General has agreed to review the situation again in 2009.
I turn particularly to the compulsory mediation aspects of the laws, the concerns I have about inadequate resourcing of the family relationship centres and the potential impact these laws may have on undermining existing New South Wales laws against domestic violence. The new family law amendment requires that parents attend compulsory family dispute resolution before applying for a parenting order under the Family Law Act. As legislators we should always strive to find ways that enable individuals and communities to resolve matters in simpler and fairer ways. The introduction of community mediation and initiatives such as circle sentencing and youth justice conferencing are examples that so far are working very well within our communities.
The issue of concern with the Family Law amendment is that while it provides an exemption for the requirement for compulsory mediation where there is family violence or the risk of family violence, the question remains: How confident are we that the new system will actually be able to identify family violence and protect the women and children subjected to it? Cases of family breakdown involving family violence are too common. We are not speaking of isolated instances.
A recent survey of Australian women examined by the Australian Institute of Criminology found that 34 per cent had been subjected to domestic violence by an intimate male partner. Not surprisingly, the rate of violence amongst separating couples is even higher. Research by the Australian Institute of Family Studies indicates that violence is an issue for 66 per cent of separating couples, with 33 per cent describing that violence as serious.
The impact of violence on children and young people who are victims or witnesses of domestic violence is also of particular concern in relation to these proposed amendments. Several studies have shown that children witness 85 per cent to 90 per cent of domestic violence offences and that in an estimated 60 per cent of families where domestic violence is occurring child abuse is also occurring. Furthermore, a national crime prevention study found that up to one-quarter of young people in Australia have witnessed an incident of physical domestic violence against their mother or stepmother. When children are raised in violent and fearful households their development is put in jeopardy. Exposure to violence can affect the child's sense of security and how the child relates to people later in life.
Research also shows that violence can result in regressive symptoms such as increased bedwetting, delayed language development and separation anxiety. Both aggression and depression are common symptoms exhibited by those exposed to violence early in life. Failure to protect both child victims and child witnesses of family violence carries with it the risk of perpetuating the cycle of violence in the next generation. Such research highlights the very real dangers to both women and children that may arise if victims of domestic violence are left to negotiate parenting agreements with perpetrators without adequate advice and assistance.
I draw attention to the Government's response and to anecdotal evidence reported at the Community and Disability Services Ministerial Advisory Council in March 2007. Members in other State and Territory jurisdictions noted that they were already concerned about family relationship centres, which they allege are forcing women who had experienced domestic violence to be involved in mediation with the perpetrators of the violence. There are other anecdotal reports of abused children being required to have contact with the perpetrators of the abuse. Though that evidence remains anecdotal, we must keep a very close watch on it.
The aim of the recommendations in the committee's report is to ensure that both the Commonwealth and the New South Wales governments take all steps necessary to ensure that the circumstances set out in the report do not eventuate. The recommendations cover five matters. The first is the development of new protocols to enable New South Wales agencies such as the Department of Community Services to assist family dispute resolution practitioners to deal with cases involving family violence. The second is the option of giving New South Wales residents access to lawyer-assisted mediation through family relationship centres. The third is additional funding for indigenous services for all family relationship centres located in areas with a significant indigenous population. The fourth is consultation between New South Wales and the Commonwealth to ensure an adequate number and distribution of family relationship centres in the state. And the fifth is a public education strategy.
It is vital that screening for family violence is effective, as parents attending for family dispute resolution will not be legally represented, nor will the staff of family relationship centres give legal advice. Family dispute resolution is different from other forms of family law mediation, in which lawyers are on hand to advise the parties of their legal rights and responsibilities in relation to any proposed agreement. As the role of the family dispute resolution practitioner is to facilitate an agreement, rather than to advise either of the parties of their rights or responsibilities, it is critical that the power balance between parties to family dispute resolution be relatively equal.
With women who are victims of domestic or family violence—women who are far more likely to suffer from low self-esteem, confusion, feelings of worthlessness, panic, depression and despair—the power balance between victim and perpetrator will be far from equal. The low self-esteem that characterises victims of domestic violence means they are often reluctant to speak up, even when speaking up is in their own interests. The last Australian Bureau of Statistics survey of women's safety found that 40 per cent of women subjected to domestic violence by their current partner do not disclose the experience to anyone. This reluctance to break the silence makes the identification of family violence a difficult task, and one that only staff who are adequately resourced, trained and supported will be able to undertake.
Mediating for women who have experienced or are experiencing domestic violence has inherent difficulties. Recent research undertaken in Victoria by Relationships Australia, in conjunction with the Domestic Violence and Incest Resource Centre, found that in some cases mediators do not adequately assess non-physical forms of abuse and control; women who had experienced violence felt coerced by their partners to make agreements; and women frequently found that the man who had used violence was noncompliant once plans were drawn up. This research makes clear that effective screening requires staff with extensive skills, experience and support.
The committee's report highlights that there is a real and genuine concern that the Commonwealth Government will fail to adequately fund and resource the staff at family relationship centres to enable them to effectively screen for family violence. The resourcing of those family relationship centres is, I believe, inadequate. Just take the example of New South Wales: there will be a maximum of only 11 family relationship centres in this State when the amendments, as proposed, take effect next month. Although a further 10 family relationship centres are to be provided in 2008-09 some of those centres will come on line years after the amendments take effect. And even when all 21 centres are up and running, that is likely to be insufficient to service a population of six million people. This is simply poor planning.
The Commonwealth is providing additional funding for indigenous services at only one family relationship centre in New South Wales, despite the high incidence of family violence in indigenous communities across the State. Putting aside for the moment the fact that indigenous women are particularly reluctant to discuss family violence issues, especially with non-indigenous people, this is simply inadequate. The Commonwealth has failed to make provision for an adequate number and distribution of family relationship centres and has failed to ensure that the available centres can service a diverse client base.
The committee's report also makes a series of other recommendations that are designed to respond to widespread concern that the recent amendments to the Family Law Act may work to undermine the effectiveness of existing New South Wales laws against domestic violence. A number of the Commonwealth's amendments are intended to address the perception that family violence orders such as apprehended domestic violence orders are being used strategically for advantage in family law matters. For example, provisions that require that only final or contested apprehended domestic violence orders be considered when determining parental responsibility may affect the number of apprehended domestic violence order applications made and the number of applications that are defended.
New provisions governing conflict between Family Court orders and, say, apprehended domestic violence orders may prove difficult to administer. As the report points out, there is no substantive evidence that family violence orders are being used to gain advantage in family law matters. It would be tragic, to say the least, if a misguided endeavour to placate the other unfounded fears of some work to undermine the effectiveness of apprehended domestic violence orders in this State. Apprehended domestic violence orders and the systems and services that have been put in place to support them represent the outcome of decades of work by women in New South Wales, both inside and outside government. These women have campaigned to raise awareness about domestic violence, undertaken the practical work necessary to support victims, and lobbied vigorously for legislative changes.
The Crimes Amendment (Apprehended Violence) Act passed in the final session of the previous Parliament was only the most recent of many attempts to grapple with this difficult issue. The results of more than 20 years of legislative reform aimed at regulating and preventing domestic violence should be safeguarded. The New South Wales Government continues with implementing a full range of initiatives to combat domestic violence. For the sake of women and children facing the trauma of family breakdown in the context of domestic violence, and in recognition of the work done by so many to defend the rights of those survivors and protect their interests, I commend this report to the House.
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Business interrupted.]