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Standing Committee on Law and Justice

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Speakers - Donnelly The Hon Greg; Westwood The Hon Helen
Business - Committee, Report, Motion

      STANDING COMMITTEE ON LAW AND JUSTICE
Page: 1289

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

      Debate resumed from 6 June 2007.
      The Hon. GREG DONNELLY [2.30 p.m.]: In my contribution to this take-note debate on Report No. 33 of the Standing Committee on Law and Justice, entitled "Impact of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)", I refer to the time taken to deliberate on this matter. Compared with the inquiries of other committees of which I have been a member, this inquiry received fairly short deliberation. Obviously, there was a desire by committee members to address the issues as required under the inquiry's terms of reference. With the very able assistance of the committee secretariat, committee members were able to work through the inquiry fairly quickly.
      I will not go through the committee's terms of reference; however, it is important to understand that the committee considered the subject in a very significant context and framework. Virtually every member of this Chamber, directly in some instances, has been affected by the tragedy of divorce. Chapter 2 of the report, entitled "Background", gives some details of divorce in Australia and provides insight into the level of divorce. It explains how society faces the reality of divorce. It challenges us to try to understand the consequences that flow from divorce, and how society can best manage the breakdown of marriages.
      In that chapter we are directed to look at a report of the Commonwealth Parliament entitled "Every Picture Tells a Story". That significant report was released in December 2003. It gives specific and significant details of divorce in Australia with particular focus on child custody arrangements and connected matters. That report ultimately led to the Commonwealth Act, the Family Law Amendment (Shared Parental Responsibility) Act 2006, which is the subject matter of the Standing Committee on Law and Justice report that I am addressing.
      Effectively, the report examined the implications of amendments to the Family Law Act as they affect New South Wales, and how the New South Wales Government should respond. I encourage honourable members who are interested in this area to read the Commonwealth report if they have not already done so. It contains a great deal of factual information: statistics, figures, graphs and numbers. Perhaps more profoundly, it underlines the real human tragedy of separating spouses and their children.
      We need to look behind the dryness of the figures to understand the human reality of the figures. The upper House committee's report contains 14 recommendations, each of which is significant and important. The recommendations provide direction to the New South Wales Government on appropriate responses in State laws. Recommendation (2) is:
      That the New South Wales Government work with the Commonwealth Government to ensure that staff at family relationship centres and accredited family dispute resolution practitioners are suitably trained and use appropriate screening tools in order to correctly identify cases involving family violence.

      In this House, in both the previous Parliament and in this Parliament, we have heard in various debates, reports and comments about the incidence of family violence in today's society. The tragedy sadly plays out in so many households in this State every day. The State and Federal governments must work as cooperatively as they can to develop policy and law to reduce family violence in New South Wales.

      Given that the purview of family law essentially is a Commonwealth matter, we need a cooperative and working relationship between the States and the Commonwealth when dealing with children and child welfare, and violent crime and crimes against women. I wish to comment briefly on the number and location of family relationship centres to be established in this State by the Commonwealth Government. Earlier contributors to debate on this matter spoke about the number of centres to be established in this State. There are practical difficulties with regard to the number of centres so I think it could be argued quite convincingly that there are not enough of them.
      To the extent that there are centres in this State, the question that has to be asked is: How can we ensure ready access of people who wish to avail themselves of the services of those centres, in particular, women with children residing outside major metropolitan areas? As New South Wales is a vast State and we have only a limited number of centres, how do we facilitate people's access to these centres? The State Government must work with the Commonwealth Government to discuss further the location of these centres and, to the extent that agreement can be reached, the planning for and the building of more centres to help deal with divorce in New South Wales and, more broadly, in Australia. I commend this report to honourable members and encourage them, if they have not done so already, to familiarise themselves with it and its recommendations.
      The Hon. HELEN WESTWOOD [2.42 p.m.]: I speak on the final report of the Standing Committee on Law and Justice entitled "Impact of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)." Although I was not a member of this House at the time—and I was certainly not a member of the committee—I am interested in this inquiry and its results. The committee's recommendations and summary are consistent with the views that I had already heard expressed in the community on this important issue. In some of the consultations that I had held in my previous occupations people in the community who work with victims of domestic violence, families and children expressed those concerns, so I believe it appropriate that the committee held this inquiry.
      The committee was required to report on the impact of the Family Law Amendment (Shared Parental Responsibility) Act on women and children in New South Wales and on the operation of court orders that can prevent family members who were perpetrators of violence coming into contact with their families. The committee found that the amendments contained in the shared responsibility Act would have a significant impact on women and children in New South Wales. It is clear from the evidence heard by the committee that a number of areas of concern relate to the family dispute resolution process established by the Family Law Amendment (Shared Parental Responsibility) Act and the Commonwealth's associated family law reform agenda.
      Of particular concern is the fact that family violence might go undetected if screening tools used at family relationship centres [FRCs] and by accredited family dispute resolution practitioners were inadequate. A number of submissions to the inquiry highlighted the power imbalance that might occur in dispute resolution and as a result of a failure to identify family violence. The committee therefore recommended:
      ? that the NSW Government work with the Commonwealth Government to ensure that staff at the family relationship centres and accredited family dispute resolution practitioners are suitably trained and use appropriate screening tools in order to correctly identify cases involving family violence.
      In addition, given that a number of NSW Government agencies are expert in dealing with family violence issues, the Committee considers it would be appropriate for these agencies to establish links or consult with FRCs and accredited family dispute resolution practitioners in order to assist NSW families with family violence issues. The Committee recommends that the NSW Government work with the Commonwealth Government to establish protocols to enable appropriate NSW Government and non-government agencies to assist FRC staff and accredited family dispute resolution practitioners in dealing with cases involving family violence.

      Given the serious implications of failing to identify and address family violence, the Committee considers that NSW Government agencies have a responsibility to assist women and children to meet the requirements to prove family violence in cases where it is known to exist. In particular, the Committee recommends that the NSW Government develop protocols for the involvement of the Department of Community Services to assist individuals within families in satisfying the requirements to prove family violence where it is known to exist.

      Parties attending FRCs will not be legally represented, nor will staff at FRCs provide legal advice. The Committee believes that legal advice and possibly legal representation during the family dispute resolution process is important to safeguard the best interests of women and children. The Committee therefore considers that steps should be taken by the Commonwealth Government to offer NSW residents the alternative of lawyer assisted mediation. Further, the Committee notes that the alternative dispute resolution service provided by the NSW Legal Aid Commission is an appropriate mediation model. Consequently the Committee believes that the Commonwealth Government should take steps to adopt this model of FRCs in order to ensure satisfactory mediation outcomes for NSW women and children, and has made a recommendation to that effect.

      The committee also considered the impact on Aboriginal women and children and had this to say:

      It is clear from the evidence 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.

      I believe that to be an important recommendation. The report continues:

      The Committee is concerned that the Commonwealth's provision of additional funding for Indigenous services at the Lismore FRC is insufficient to cater to the needs of the State's entire Indigenous population. The Committee therefore recommends that the NSW Government negotiate with the Commonwealth Government in order to secure additional funding for Indigenous services at all FRCs located in areas with significant Indigenous populations.

      The committee also considered the number and location of family relationship centres. Its report states:
      The Committee notes that there will be a maximum of just 11 FRCs in NSW once the requirements for compulsory dispute resolution take effect in mid 2007—

      which is about now—

      with a further ten FRCs to be provided in 2008-2009. The Committee considers this number is likely to be inadequate to service a population of over 6 million people. Further, the Committee has serious concerns that the small number of FRCs and their sparse distribution across the State will significantly disadvantage rural and regional populations. The committee is of the view that the Commonwealth Government should adequately resource the infrastructure so that everyone has easy access to FRCs. The Committee also recommends that the NSW Government discuss the appropriateness of the number and location of FRCs with the Commonwealth Government, and requests that future decisions about the location of FRCs be made in conjunction with relevant NSW government agencies to ensure that the decisions are based on accurately identified population and demographic needs.

      The committee received evidence to the effect that a lack of community understanding regarding the implications of amendments to the Family Law Act was another area of concern. The committee was of the view that individuals within families in New South Wales might be seriously disadvantaged if they undertook mediation without a full appreciation of their rights and responsibilities under the Family Law Act 1975. The committee believes that a public education campaign must be undertaken in New South Wales to inform parties in divorce and separation proceedings about the impact of these amendments, and it makes recommendations to that effect.

      I also support the further recommendations of the committee, and I am pleased that the Government is committed to acting on them. I note also the comments of the committee chair, the Hon. Christine Robertson, that, although she supports the Federal Government's aim of moving away from litigation in family matters, she is concerned about the unintended effects of the latest amendments to the Family Law Act. She expressed particular concern that the amendments may result in harm to women and children in New South Wales. We should all be concerned about that. The community is aware of the impact of domestic violence on women and their children. Regretfully, many women and their children are injured—in extreme cases some are murdered—as a result of family violence. We must use all possible mechanisms to ensure that we protect those women and children in our community who are vulnerable to family violence.
      As the Hon. Christine Robertson said, the possibility that these amendments may expose women to family violence and may subordinate the best interests of children to the interests of parents is the most concerning element of this inquiry. I commend the committee's recommendations to the New South Wales Government in attempting to address this area of grave concern. I support the committee's report.
      Debate adjourned on motion by the Hon. Ian West and set down as an order of the day for a future day.


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