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Standing Committee on Law and Justice

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Speakers - Khan The Hon Trevor; Voltz The Hon Lynda; Pavey The Hon Melinda
Business - Committee, Motion

      STANDING COMMITTEE ON LAW AND JUSTICE
Page: 424

      Report: Impact of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

      [ Business resumed.]

      The Hon. TREVOR KHAN [2.56 p.m.]: I speak on this matter from a number of capacities—first, and obviously, as a member of this Chamber, but also as a lawyer who practised in family law as well as, tragically, acting over the years for a number of people who have been the subject of domestic violence, including in one circumstance a lady who lost her life in a murder-suicide in the context of family law. That truly brings home that these matters are tragic. That case involved the loss of a mother and father, with two children being left in circumstances of great tragedy. These are not matters that can in any way be belittled; they are not matters that should ever be treated as anything but of the utmost importance.

      As a lawyer, I was a member of the Family Issues Committee of the Law Society at the time this new legislation came into effect. Along with the vast majority of members of that committee, I was entirely in support of the amendments to be made to the Family Law Act. The reason for that support was the recognition of the need to have an effective dispute resolution system put in place, and the recognition by the general community, as well as both sides of the Federal Parliament, that there was a fundamental problem with the way family law was being administered in this country.

      That fundamental problem was perceived to be, perhaps with some regret, the excessive presence of lawyers in the negotiation process. It was perceived, perhaps partly correctly, that the very presence of lawyers tended to exacerbate relations between the parties and prolong the dispute. When one considers family violence in the context of family law one must take into account that a prolongation or an exacerbation of a dispute greatly increases the potential for violence.
      When the Federal Parliament considered this matter it was the desire to do justice to the parties by reducing the likelihood of a dispute and thereby reducing the likelihood of violence that was a significant factor in the decision-making process. One must remember that when the legislation was introduced it received great support from all parties. One must also remember that in the Federal Parliament many people of great conscience who sit on both sides had the opportunity to consider the matter and take into account the matters put forward, including some of those raised by the Hon. Penny Sharpe.
      The legislation arose in part from a lengthy inquiry headed by the Hon. Kay Hull, who travelled the country from one side to the other and from the north to the south. She accepted a very wide range of submissions from interested parties, which was the appropriate way to proceed. As a result of the inquiry the legislation was introduced. My recollection is that the report from the inquiry was unanimous. However, it seems that some people, particularly the Hon. Penny Sharpe, are under a misunderstanding. I refer particularly to the paramountcy principle—the paramount interest of the child. In no way has the legislation affected the paramountcy principle. I say that not just because I know the Act but I because I have practised in accordance with the Act. I have advocated in the Federal Magistrates Court and the Family Court of Australia, and on a number of occasions I have been confronted by a recognition that the paramountcy principle will be taken by the courts as the starting point and, in truth, the end point of its consideration for appropriate orders to be made in respect of children.
      The paramountcy principle has been enshrined in legislation from the start. It is ingrained in the judiciary. It is the bedrock upon which the Family Law Act operates. No-one in this Chamber should think the legislation has changed in that regard. Although I understand some of the concerns, and although I recognise that a great deal of thought has gone into the committee recommendations, the intention of the Federal Parliament as expressed in legislation is to provide a better way forward for people involved in matrimonial disputes.
      The legislation certainly has attracted a great deal of criticism, but the intention behind it is, to say the very least, noble. Plainly, the number of family relationships centres is an issue, and it must be an issue. Conflicts of interest in relation to advice and assistance will arise, and those matters should be reviewed in due course. With that said, this is good legislation. The ideology behind it is fundamentally sound.
      The Hon. LYNDA VOLTZ [3.04 p.m.]: I speak on the Standing Committee on Law and Justice final report on the "Impact of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)" on women and children in New South Wales. The Family Law Amendment (Shared Parental Responsibility) Act 2006 is part of the Commonwealth Government's effort to encourage the use of non-court based dispute resolution, which is aimed at saving separating parents from expensive and protracted litigation under the traditional paradigm.
      The New South Wales Government supports the avoidance of needless litigation when it comes to family matters. However, unintended consequences may arise from these Federal amendments to the Family Law Act 1975, consequences that may leave women and children at risk of harm. The amended Act has the potential to disadvantage women and children, particularly those who are victims, or at risk, of domestic violence. That is why the very first recommendation by the committee asks the New South Wales Attorney General to:
      Instigate a future review of the impact of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) on families in New South Wales and on the operation of court orders that can prevent family violence perpetrators coming into contact with their families.
      In its response the New South Wales Government raised concerns about the capacity of the new family relationships centres to identify such matters and to be culturally sensitive when the situation warrants it. The New South Wales Government is concerned that the new requirement for compulsory mediation in family disputes could lead to situations where women who have been the victim of violence are forced to undergo mediation with the perpetrator of the violence. The Government is committed to a review, but not one that will be premature. The impact of the legislation will not be fully understood until the amended Act has been in operation for a reasonable period. Although the Family Law Amendment (Shared Parental Responsibility) Act 2006 commenced on 1 July 2006, the compulsory mediation provisions will not commence until 1 July 2007. Therefore it is appropriate that a reasonable amount of time elapse before the review is instigated. This will allow the efficacy of the legislation to be more accurately and more comprehensively gauged.

      I note that the New South Wales Government, in its original submission to the inquiry, voiced its concern about a worrying increase in applications for apprehended violence orders, an increase that is possibly linked to the emphasis of the amended Act on apprehended violence orders as evidence of family violence. Such changes have implications for the resources of the New South Wales Police Force, relevant courts, and the Legal Aid Commission. Therefore the New South Wales Attorney General's Department needs to give serious consideration to the committee's recommendation that research be conducted into any changes in the use of apprehended violence orders— I note that the New South Wales Government, in its original submission to the inquiry, voiced its concern about a worrying increase in applications for apprehended violence orders, an increase that is possibly linked to the emphasis of the amended Act on apprehended violence orders as evidence of family violence. Such changes have implications for the resources of the New South Wales Police Force, relevant courts, and the Legal Aid Commission. Therefore the New South Wales Attorney General's Department needs to give serious consideration to the committee's recommendation that research be conducted into any changes in the use of apprehended violence orders—changes that are related to the Commonwealth's family law amendments.
      Amendments to the Family Law Act alter the way in which apprehended domestic violence orders interact with Family Court orders. Division 11 of part VII of the Family Law Act seeks to negotiate the inconsistencies between such orders and Family Court orders, thereby preventing Family Court orders from inadvertently bringing about family violence. Family Court orders render ineffective previously made apprehended domestic violence orders. Parenting orders made by the Family Court must take into account the apprehended domestic violence order, but the court can modify it.
      Similarly, State courts may vary Family Court orders when they are dealing with apprehended domestic violence orders. As I said, the salient objective of this arrangement is the protection of vulnerable people from the possibility of family violence. I understand that the committee heard evidence that suggested uncertainty about the effectiveness of the changes to division 11, and whether State courts would be willing to vary Family Court orders.

      Another possible consequence of new division 11 is a multiplicity of hearings on the same issue. This arises from section 68Q, which provides that an apprehended domestic violence order may be made invalid if it is not consistent with a Family Court order, but only to the degree that it is inconsistent. It seems that the court issuing the order will need to consider the evidence that engendered the original apprehended domestic violence order before rendering it invalid—a process that may result in parties having to revisit the ordeal associated with obtaining the order in the first instance.

      Moreover, section 68R complicates matters further by providing State and Territory courts with the power to vary, discharge or suspend Family Court orders. Whilst the section may sound straightforward enough, invoking the new section is no easy task and makes it harder to change family law orders. It is therefore fitting that the committee's eleventh recommendation asks that the New South Wales Attorney General's Department work with the Chief Magistrate to develop and implement a practice note that will help New South Wales magistrates with the application of division 11 of part VII of the Family Law Act.
      Whilst the Government acknowledges the concerns of the committee, practice notes have their genesis in the courts. It is not for the Attorney General's Department to interfere when it is clearly a matter that is within the purview of the Chief Magistrate. It should also be noted that significant levels of legal education are afforded to magistrates. According to the Government's response to this recommendation, education in relation to domestic violence-family law issues is an integral part of the ongoing training.

      The Government has also indicated that the Local Court bench will be updated in line with the changes in the family law jurisdiction. The section of the bench book on apprehended domestic violence orders informs magistrates on the issue of parental contact with children and the associated requirements. The committee also found that the Family Law Amendments (Shared Parental Responsibility) Act 2006 may lead to an increase in contested apprehended domestic violence orders, which, logically, would require the commensurate availability of legal advice to prevent people from being denied a fair trial. The majority of apprehended domestic violence order cases, approximately 70 per cent, are brought by police prosecutors. Legal aid is not always available to defendants. Legal aid exists for socially and economically disadvantaged people and is underpinned by the principle that the legal system can function only if people have equitable access to it.

      The committee felt that actual or potential victims of domestic violence should be included in this group of disadvantaged people. The committee therefore recommended that the New South Wales Government should investigate the possibility of establishing a duty solicitor in specific courts. People who have suffered domestic violence are in a vulnerable position of need. It is essential that parties to a court's proceedings receive adequate legal advice. The New South Wales Government is interested in whether a duty solicitor scheme at relevant courts would be of assistance to defendants in matters concerning apprehended domestic violence orders. While it is true that many of the defendants advised by the Legal Aid Commission of New South Wales in relation to apprehended domestic violence order proceedings are not aware of the consequences following the making of an apprehended domestic violence order, the demand for such advice is a significant strain on the resources of the Legal Aid Commission of New South Wales.

      The salient need to advise defendants about what apprehended domestic violence orders entail, especially as regards consenting to an apprehended domestic violence order with or without admissions, warrants the investigation of how the establishment of a duty solicitor scheme will assist in meeting this demand. That is why the New South Wales Government has submitted in its response that the Attorney General's Department, through the Legal Aid Commission of New South Wales, will investigate the feasibility of such a scheme. The Government also noted that any increase in funding for defendants in apprehended domestic violence order proceedings should be balanced with the need for the alleged victims to receive equal legal representation.

      I commend the work of the Standing Committee on Law and Justice on this matter and I congratulate the Government on its response, which is a strong indication that it will not stand for women being exposed to family violence. The Commonwealth should also take note to ensure that family relationship mediators are adequately trained so they are able to recognise domestic violence issues and tackle them in an appropriate and culturally sensitive manner. The New South Wales Government is concerned about reports suggesting that family relationship centres provide mediation to couples where violence has occurred. Mediation is an exercise in futility when there is a power imbalance between the victim and the perpetrator. The Commonwealth must ensure that the staff of family relationships centres and other family dispute resolution practitioners are suitably trained and that they have at their disposal appropriate screening tools to identify and deal with family violence.

      The Hon. MELINDA PAVEY [3.14 p.m.]: It is with pleasure that I speak to the report of the Standing Committee on Law and Justice on the impact of the Family Law Amendment (Shared Parental Responsibility) Act. I commend the comments by my colleague the Hon. Trevor Khan during the debate. Much of the work done by The Nationals Federal member for Riverina, Kay Hull, resulted in a House of Representatives inquiry being set up in December 2003 and conducted by the then Standing Committee on Family and Community Affairs. The work of that Federal committee resulted in very positive legislation to protect children.
      The legislation helps to keep families together, or at least helps to keep family members talking, to prevent a breakdown in communication. Through conversations I have had with Kay Hull and my many other Federal colleagues throughout New South Wales I now know that the life of a Federal member of Parliament is taken up greatly by issues of family law, access to children and the breakdown of families.
      The work of Kay Hull and the Standing Committee on Family and Community Affairs has been incredibly important to family relationships throughout this country. The committee's report, "Every Picture Tells A Story", advocated the concept of shared parental responsibility within the context of preserving the best interests of the child. The inquiry received 1,700 submissions from everyday people throughout Australia who have been affected by Family Court decisions that have added to the pressures of family breakdowns. My colleague the Hon. Trevor Khan is of the view that the best thing about amendments to the Family Law Act is that resolution of family issues is brought about early in the process by keeping families talking and by creating arrangements that facilitate contact between parents in separate abodes and discussion of issues as mother and father, with the best interests of the children being paramount. What better way to create a better environment for families who are experiencing the difficulties of a marriage breakdown?
      In a sense I am disappointed that the resources of this House were so quickly applied to the investigation of failed family relationships to the extent that the issue of domestic violence was somewhat overshadowed. I support the comments by my colleague the Hon. Trevor Khan: Tamworth and Coffs Harbour are indeed fortunate to have family relationship centres among the 65 such centres that have been established across Australia. Resourcing of family relationships centres must be continually monitored. More centres should be established where they are needed. The Coalition will keep pressure on the Government to ensure that the funding of those centres is adequate. I take this opportunity to acknowledge the work of the Federal committee and the contribution made at a Federal level by The Nationals member of the House of Representatives Kay Hull in getting the ball rolling, so to speak.
      Debate adjourned on motion by the Hon. Melinda Pavey and set down as an order of the day for a future day.


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