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Standing Committee on Law and Justice

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Speakers - Fazio The Hon Amanda; Hale Ms Sylvia; Ajaka The Hon John; Griffin The Hon Kayee
Business - Committee, Report, Motion

      STANDING COMMITTEE ON LAW AND JUSTICE
Page: 815

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

      Debate resumed from 30 May 2007.
      The Hon. AMANDA FAZIO [2.47 p.m.]: I am a member of the Standing Committee on Law and Justice. Other speakers have gone through this important report in detail and covered different aspects. I shall focus on only one aspect: the failures of the new Commonwealth legislation. Under the Commonwealth's Family Law Amendment (Shared Parental Responsibility) Act 2006, from 1 July this year all parents must attempt dispute resolution before they are permitted to take a child custody matter to court. One exception to this rule is in cases where the court is satisfied that there are reasonable grounds to believe there has been, or there is a risk of, abuse or family violence. But what are "reasonable grounds" and how can they be established?
      Studies show that 80 per cent to 95 per cent of women who experience domestic violence do not seek assistance from the police, doctors or services such as women's and family refuges. As family violence generally occurs in private, there are unlikely to be any witnesses other than the couple's children. Further, the new law also raises the spectre of cost penalties against any party who knowingly makes a false allegation or statement in the proceedings. I firmly believe that this provision will only serve to deter women from disclosing family and domestic violence for fear of not being believed and incurring bills they cannot meet. It is a valid concern that between 80 per cent and 95 per cent of women who experience domestic and family violence do not report it to the authorities.
      Where does this leave a woman who is the victim of domestic violence and is seeking custody of her children from the Family Court? It probably leaves her at one of the Commonwealth Government's new family relationship centres, where, if she is lucky, the dispute resolution practitioner will recognise that she is the victim of family and domestic violence and that the case is not suitable for mediation. She will have to be very lucky, however, because the evidence shows that while family and domestic violence is a common cause of marital breakdown it is difficult to identify by any screening mechanism.
      Research into mediation services in Australia has repeatedly shown that many people who should be excluded from mediation because of violence are not. The most recent research indicates that almost 71 per cent of women find it difficult to disclose domestic violence or child abuse when the opportunity arises, that is, to disclose it to lawyers, counsellors or any other professional.
      Screening techniques will need to be able to identify all forms of violence, whether they be physical, sexual, emotional or financial abuse, or stalking, harassment or intimidation. That is why it is essential that staff employed by the Commonwealth Government at family relationship centres and accredited dispute resolution practitioners are well trained and use appropriate screening tools. Without effective screening, battered women will find themselves attempting to negotiate with the man who has beaten them. They will be intimidated, afraid and incapable of arguing their case. The likely result will be custody arrangements that put children at risk. To date, the Commonwealth Government has provided little information on the procedures to be used by family relationship centre staff when dealing with family and domestic violence.
      Further, the States and Territories have had no involvement in the establishment or operation of the centres. Anecdotal evidence is emerging of family relationship centres forcing domestic violence victims to be involved in mediation with perpetrators, and abused children being required to have contact with the person who abused them. This is unacceptable, and we will pursue this issue in the strongest possible terms with the Commonwealth Government. Recommendation 8 of the report suggests that the New South Wales Government should develop protocols for the involvement of the Department of Community Services to assist individuals to prove family violence. The responsibility of the Department of Community Services under the Children and Young Persons (Care and Protection) Act 1998 is to promote and safeguard the safety, welfare and wellbeing of a child or young person.
      While one in four reports to the department's child protection helpline concerns domestic violence, the department's responsibility is to protect children exposed to this violence, not to prove in the legal context that the violence occurred. The recommendation would shift the burden of proof from a party to the litigation to a third party—in this case the Department of Community Services. This raises a number of issues. Firstly, proving that domestic violence occurred will require substantial investigation by front-line caseworkers, using time and resources that would otherwise be employed protecting children at risk. Secondly, there are a number of legal limitations to the release of information under the Children and Young Persons (Care and Protection) Act 1998. Under the Act the department cannot release information that may identify a reporter in a child protection matter, and under section 29 (d) a risk-of-harm report or evidence of its contents is not admissible in court proceedings. Therefore, if the only evidence of family violence held by the department is contained in a risk-of-harm report, these details may not be available to the Family Court.

      While the Government does not support the involvement of the Department of Community Services in the provision of evidence of domestic violence to the Family Court, it should be noted that a number of other State agencies help women who are seeking to prove violence. The New South Wales Police Force is directly involved in investigating and prosecuting perpetrators, while the Women's Domestic Violence Court Assistance Program is a major service provided to women who are in need of legal protection as a result of domestic violence. NSW Health also helps women to prove domestic violence through access to their health records. Sadly, due to a range of social, cultural, historical and economic factors, Aboriginal families are overrepresented in cases of domestic violence and child abuse. Aboriginal families are also more likely to be one-parent families. This means that the legal changes to parenting arrangements for the children of separated parents will disproportionately affect Aboriginal children.
      That is why it is critically important that Family Relationship Centres provide services that support Aboriginal families, particularly with relation to compulsory mediation. Compulsory mediation does not have a strong history in indigenous Australian culture, and there are very few indigenous family counsellors, and no indigenous mediators, who deal with family disputes. Identifying appropriate resources, therefore, will be an issue of sector capacity and funding. The Commonwealth Government has, however, made a commitment to provide additional funds for indigenous services. The House should welcome that commitment. To ensure this funding delivers positive results, the committee also recommends that the Commonwealth introduce key performance indicators that relate specifically to Aboriginal families.
      Family Relationship Centres already operate in Lismore, Penrith, Sutherland and Wollongong, and more centres will open on 1 July in Blacktown, Campbelltown, Fairfield, North Ryde, Wagga Wagga, Nowra and Newcastle. The Commonwealth decided the location and opening date of these centres despite little consultation with the State Government. As a result, there has been no opportunity to ensure that the centres are established in areas of disadvantage or where they complement existing or planned State government services. In particular, there are no Family Relationship Centres in western New South Wales or other rural areas, and that will have a disproportionate impact on Aboriginal families. We call on the Commonwealth Government to take this matter into account in the establishment of future centres.
      There is no doubt that Family Relationship Centres are placing additional demands on State government services. While the Iemma Government wholeheartedly supports measures that reduce or stop family violence, it must be recognised that the services now being delivered to clients of Family Relationship Centres are being delivered without any additional funding from the Commonwealth. The Commonwealth Government has shown yet again it is prepared to shift the cost of helping the most vulnerable in our society to the States and Territories, even though it has a massive $13 billion surplus that it will use for pork barrelling in the run-up to this year's Federal election. It is a disgrace.
      I can understand the sentiments behind the changes introduced by the Commonwealth. I believe that every member of this House would support the notion that both parents should have responsibility in bringing up their children. I personally have concerns about the concept of shared parental responsibility. I believe it can lead to a reduced quality of life for children as a result of the financial impost on both parents to provide suitable accommodation. For example, both parents would be required to have a property with sufficient bedrooms for the children.
      For many families, it is not just dealing with the heartbreak that follows a divorce or separation, it is also coping with the financial strains that are imposed on both parties. Although the sentiments behind the Commonwealth legislation are generally accepted, some of the negative impacts have not been properly considered. I am very concerned that an unintended consequence of the Commonwealth legislation is that the standard of living of children of separated parents will suffer. This issue was highlighted in evidence given to the committee during the inquiry. Children suffer enough emotionally from their parents' separation and the dislocation of leaving the family home and moving into rented accommodation with the parent who has the main custodial responsibility. With the concept of shared parental responsibility, both parents will struggle to provide two family homes for the children. The consequent loss of quality of life and standard of living can have a negative impact on the children, particularly on their education and their ability to perform adequately in this area.
      Ms SYLVIA HALE [2.57 p.m.]: The Greens welcome this report. My Federal colleague Senator Rachel Siewert served on the Federal review of the Family Law Amendment (Shared Parental Responsibility) Act and my colleague Ms Lee Rhiannon was a member of the Standing Committee on Law and Justice, whose report we are now debating. The Greens support the conclusions of the tabled report, particularly the focus on moving away from litigation in family matters towards a greater use of and access to family dispute resolution procedures. We share the concern that the amendments to the Commonwealth Family Law Act may result in harm to women and children in New South Wales. Most people would agree that parents should share parenting responsibilities, both when in a relationship and after separation. The proviso is, however, that the interests of the child must at all times be paramount.
      The Greens recognise that when both parents are responsible, reasonable people, it can be advantageous for children to spend time with both parents in their respective households. But, in certain circumstances, disruption may occur that is detrimental to the best interests of the child. The causes of such disruption can include severe discord between the parents—especially when children are used as pawns in a conflict by warring parties—the failure by one or other party to uphold agreements, ongoing violence or the threat of violence between parents, and geographic distance between households.
      The Hon. Amanda Fazio commented on the financial burden that many households will bear as a result of the shared parental responsibility Act. Equal parenting time works best when the parents live within a reasonable distance of each other. Problems can arise where one parent opts to move, for example, several hours away but insists on maintaining the same level of contact. The child could be obliged to spend a lot of time travelling between households and could be unable to engage in regular weekend activities such as sport.
      Violence between parents is obviously disruptive and distressing for a child. The handing over of children between parents is an opportunity for violence to occur, and it often occurs when there has been a history of violence in a relationship. In such circumstances, the assumption that parents are equally entitled to spend time with the child may not be supportable nor in the best interests of the child.
      It would be wrong to allow some men's lobby groups to downplay the risk that some men pose to women and children. Such groups contend that men are often the victims of female violence. That assertion is simply neither true nor supported by the facts. Barry Williams, the founder and representative of the Lone Fathers Association of Australia, said when addressing the inquiry conducted by the Commonwealth Parliament's Legal and Constitutional Committee on 3 March:
      This government spent millions of dollars on a no violence against women campaign instead of spending the money on no violence against any member of the family. That was an absolute shame and should never have been allowed.
      It has caused many people to believe that violence is only contributed on one side, when statistics and female researchers around the world have shown that violence is actually contributed 50-50 by both parties.
      That statement is clearly false. Anyone who knows anything about statistics on violence and murder in a domestic setting knows that the vast majority of violent acts and sexual abuses are committed by men against women and children. If women do murder their male partners, it is usually after they have already suffered extreme violence or are in fear for their life. I take exception to the misleading statement made by the Lone Fathers Association of Australia. There are many horrifying instances in which a separated father has taken out his anger on his ex-partner or on his children. Women and children must be protected from abusive ex-partners.
      I welcome the recommendation in the report that the Attorney General's Department monitor the incidence of apprehended domestic violence order applications and the incidence of defended apprehended violence orders, and that the research be used to inform resourcing decisions for State courts and associated support services. Most parents do come to an agreement, but those who cannot come before the Family Court, which usually awards custody to the mother. There are often good reasons for that outcome because, as Ms Hannan from Family Services Australia noted when addressing the Federal inquiry:
      The cases that end up in front of the Family Court usually are the ones where there is high conflict, where there has been violence or some sort of issue around them being able to make a clear decision for themselves. They are the cases that we often see in mediation or contact orders programs. The perception that the court has made more orders in favour of women is more to do with the attachment and the primary attachments and who has had the primary caring role prior to separation, and looking at that as a major issue for the children. That certainly needs still to be in the equation when decisions are made.
      The submission by Women's Legal Services Australia pointed to an inherent conflict in the Family Law Act; that is, on the one hand it is possible and a good idea to encourage meaningful relationships with abusive parents and, on the other, protecting children from harm from abusive parents is paramount.

      The Greens support the report of the Law and Justice Committee and thank the Hon. Christine Robertson and committee members for producing the recommendations. I attended my first meeting of the committee this morning and understand that, unlike some other committees, it is a model of peaceful if protracted dispute resolution. I trust that its recommendations will vigorously pursued and implemented by the Government.
      The Hon. JOHN AJAKA [3.03 p.m.]: I speak on the report of the Standing Committee on Law and Justice on the Impact of the Family Law Amendment (Shared Parental Responsibility) Act 2006 not only as a member of the Legislative Council and a new member of the Standing Committee on Law and Justice but also as a lawyer in a suburban firm who has practised family law extensively and, most importantly, as the loving father of six beautiful daughters.
      The family is the cornerstone of our community. As policy-makers it is our responsibility to do all we can to foster strong loving family relationships. Obviously there are occasions when the family unit breaks down, and when this occurs it is critical that there are mechanisms in place to help family members work through these difficult times. Importantly, there is a need to prevent a complete breakdown in communication between family members so that a resolution can be found that ensures that the best interests of the child are and remain paramount.
      The Commonwealth Family Law Amendment (Shared Parental Responsibility) Act 2006 has the noble intention of protecting the right of children to grow up in a safe environment with the love and support of both of their parents and, importantly, places an emphasis on the protection of children from family violence. The Act came into force less than 12 months ago and, as a result, it is difficult to fully appraise the impact of the Australian Government's noble reforms. The amendments to the Family Law Act recognise that the primary objective when resolving a dispute should be the interests of the child. This is first and foremost.
      The Act makes the right of children to know their parents equally and to be protected from harm as the primary factors for the court to consider in deciding the best interests of the child. It also includes new factors for the court to consider, such as requiring the court to take into account parents who fail to fulfil their major responsibilities, such as the failure to pay child support or the continual failure to turn up for contact handover as agreed.
      To protect the interests of the child the Australian Government recognised the adverse effects of the excessively litigious nature of family law matters. To address this problem, the Act has put in place a family dispute resolution mechanism that requires parents to make a genuine effort to resolve their dispute before taking the matter to court. Sensibly, there is an exception from this requirement where there is evidence of child abuse or violence. There is also a range of amendments to the counselling and dispute resolution provisions in the Act to support the policy of ensuring that separating and divorcing parents have access to quality family counselling and dispute resolution services.
      It is important that the State and Federal governments work together to ensure that families have access to facilities, such as family relationship centres. This is an area that I am sure the Australian Government will address. The State Government also has a responsibility to provide the police with much-needed resources to address domestic violence and assault in the home. If police are not adequately resourced I fear that violence within the home may continue and that we as policy-makers will not have done all we can to protect the rights of the child.
      The State Government also has a duty to increase court resources so that apprehended violence orders can be dealt with with increased efficiency. Legal aid must also be available for both the appellant and defendant in family matters to ensure that there is equity and a just outcome is reached. I implore the State Government to consider these matters when allocating funding in the upcoming State budget. I commend the Federal Government for embarking on these important reforms to family law. As I noted, these reforms are new and it is therefore difficult to fully appraise their impact. It is important that we as policy-makers continue to review the legislation and its practical effects in due course. I conclude by congratulating the Federal Government for its noble reforms to the Family Law Act, which seeks to ensure that children have the right to grow up in a safe and happy environment with the love and support of both of their parents.
      The Hon. KAYEE GRIFFIN [3.08 p.m.]: I will speak briefly on the final report of the Standing Committee on Law and Justice on the Impact of the Family Law Amendment (Shared Parental Responsibility) Act 2006. I will make a couple of comments about the report and some of the parts of the executive summary relating to family dispute resolution and the presumption of shared parental responsibility. The committee found that there was no coherent strategy assisting families to get the best outcomes from the family dispute resolution process. This is of great concern. One of the committee's recommendations is that the process needs to be further reviewed because it is relatively new. There is a concern about people understanding what the Act entails and what their responsibilities are.
      Throughout the inquiry it became clear that there was a general community misconception regarding the legal presumption of shared parental responsibility, and that this misconception may adversely impact upon New South Wales families with regard to parental contact hours with a child. One of the matters that everyone is concerned about is that the child's wishes are paramount in terms of the sorts of things that happen in dispute resolution. Concern has been expressed about the fact that parties may enter mediation under an incorrect assumption that they are required to share their child with their partner for 50 per cent of the time, and that people may feel pressured to agree to equal time arrangements without realising that the presumption of equal shared parental responsibility may not apply in their circumstances and certainly may not be in the best interests of the child.
      Concern has also been expressed about what happens when there are other problems, for example, relating to domestic violence incidents, and how that is dealt with in this process. Despite the Family Law Act requiring the best interests of the child to be the paramount consideration, the devil is in the detail, as often happens, and there may be issues that relate to that being somehow subsumed by the discussion that occurs between partners in relation to what happens to the child. Obviously, the best interests of the child should always be paramount. The problem with dispute resolution and mediation is how to move through that very difficult situation and achieve an outcome that supports all family members, to ensure not only what is best for the child or children in this process but also that next step in terms of responsibilities and what happens under family law.
      I was not involved in this inquiry, so I can only speak after reading the committee's report, including the comments of the chair and committee members. A great deal of concern was expressed that practical problems are also involved in this process and that the court may not consider them appropriate to take into account. For example, there may be an issue about what is deemed to be substantial and significant time with both parents, whether other issues should be taken into account, such as problems associated with domestic violence and apprehended violence orders, in relation to the costs incurred in trying to resolve these issues between parents, and what happens when there is a breakdown of a relationship.
      I think everyone is very supportive of the outcomes that should occur as a result of this inquiry. As has already been said, the legislation is very new and reviews should be undertaken to ensure that the outcomes achieved as a result are appropriate for all parties involved. Obviously, it is an extremely emotive issue for the people involved in trying to work through the breakdown of a relationship and also consider the best interests of any children that may be involved. It is not an easy task to work through some of these problems whilst at the same time looking after the interests of the individuals and families in dealing with a breakdown in relationships.
      I commend the committee for dealing with a very difficult issue, taking the stand it has taken concerning the problems associated with family breakdowns, and trying to resolve the myriad problems associated with that. I also commend the committee for recommending that more work needs to be done on some of the issues concerning dispute resolution, and that the legislation needs to be further reviewed because it relates to a new issue. It may be necessary for changes to occur down the track because of some of the problems that might come out of the proposals in the Act and the comments made by the committee. I congratulate the committee chair, the Hon. Christine Robertson, and the members of the committee on dealing with a very difficult issue and making recommendations that will hopefully be beneficial for the future in relation to the ongoing issues addressed by the Act.
      Debate adjourned on motion by the Hon. Greg Donnelly and set down as an order of the day for a future day.


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