Julie Owens (Parramatta, Australian Labor Party) Share this | Hansard source

I rise to speak on the Family Law Amendment (Shared Parental Responsibility) Bill 2005, a bill which we on this side of parliament welcome, although not without some reservations. The bill makes substantial reforms to the Family Law Act, many of them welcomed not just by people on this side of the House but by the many people who gave evidence to the committee.

The bill reforms the act by introducing a rebuttable presumption of shared parental responsibility. It requires a court to consider equal, significant and substantial shared time with both parents. It introduces compulsory mediation before litigation, with limited exceptions. It introduces less adversarial court processes for cases involving children, promotes parenting plans as agreed between parents without lawyers, provides the legislative basis for a major increase in family relationship services through the creation of 65 family relationship centres and makes a number of other changes, including new penalties for noncompliance with orders, vexatious complaints and false allegations of domestic violence.

We are pleased to see that this government has gone some way towards addressing the concerns over family law which Labor has raised over the past years, particularly in its contribution to the Every picture tells a story report—in particular, the increased emphasis on parental responsibilities in this draft of the bill and the emphasis on the rights of children following a family breakdown. We are pleased to see the government support Labor’s push for these important elements that are now included in the bill.

Labor believes that the reform package as a whole has a lot of positives, including the shift away from adversarial litigation over children and the $400 million injection into support services, including the establishment of family relationship centres, which could have benefits for separating and separated families.

Over the past few years, I have met many people in my electorate of Parramatta who have spoken to me with rage and grief about their enormous difficulties and hardships faced under the current system. Those people include both men and women, each suffering after the break-up of their families and struggling with developing new relationships that include both partners and their children. They talk about the protracted, burdensome, costly nature of the legal system; the unpredictability of court delivered outcomes under this adversarial system that we currently have; the disempowerment of the parties under the court system; and the huge financial and emotional cost which court proceedings take on parents and their children at the most difficult and volatile point of their lives. I have seen first-hand how much damage that adversarial system can wreak on both parties as over a number of years they strive to find the worst elements in each other to bolster their case in court. What both children and their parents need at that most volatile point of their lives is certainty, safety and security.

Whether the Howard government can truly deliver on the implementation of these reforms and provide substantive and long-lasting reforms is highly questionable given its past and ongoing politicising of one of the centrepieces of the bill, the family relationship centres. It is a centrepiece because mediation under this bill becomes compulsory—three hours free mediation at the family resource centres before a couple can go to court. I am not convinced that three hours will be enough in many cases, and there are many important questions that remain unanswered regarding the quality of the service—for example, what level of professional accreditation and/or training will be required of staff, how will the government ensure high-quality and impartial advice is given to families, how will the centres deal with cases involving violence, and what training will their staff have in dealing with cases of domestic violence? Will they be placed in the areas of most need or areas of most electoral benefit to the coalition government?

Other questions remain unanswered regarding the operation and assessment of the family relationship centres themselves, such as the following. Will there be waiting lists? Of what duration? Will people waiting for their three hours of free mediation be forced to wait several months or pay for the services elsewhere? How will the performance of the family relationship centres be assessed? The government policy claims to measure the performance of the centres simply on throughput rather than quality of the service provided. That could make it impossible for cases to avoid being churned through—more like a sausage factory than a high-quality service. I say this knowing that at this stage we still have not seen the detail for the setting up and the management of the family relationship centres, yet we are considering them in this bill tonight. We have seen in the last months the breakdown of the migrant settlement services and the Job Network services, both set up on similar models to that of the family relationship centres. This also raises the issue of whether we will see effective delivery of the $400 million program outlined in this bill without a blueprint in place at this time in this complex and delicate area of law.

The government has also created a dangerous conflict of interest at the heart of these centres by tying funding to the number of people who are seen rather than the quality of the service. The performance agreements are based on the quantity of parenting agreements made rather than on the quality—funding by a churn rate rather than by outcomes or, if you like, outputs rather than outcomes. We are concerned on this side of the House that with this kind of performance agreement in place we might not see the quality of service that our families need immediately. If the quality of service is not there upfront, considerable damage can be done in the long term. We still do not have enough information on how these family resource centres will be overseen by the government.

The government has also clearly compromised its ability to create an effective dispute resolution system by politicising the process. A panel of marginal seat Liberal MPs was appointed to oversee the selection and performance criteria of the family relationship centres. Appointing a political panel to decide these selection criteria, including performance criteria and location, smacks a little of pork-barrelling. It is no great coincidence in this pork-barrelling exercise that six of the eight committee members are in marginal seats.

The consequences of missing out seats, including my own seat of Parramatta, could mean that a parent may have to make a lengthy trip to the nearest family relationship centre—for people in my area, as far as Penrith—for the compulsory mediation and make onerous child-care and travel arrangements and pay associated costs. This is in place of the current convenience of being able to choose to attend mediation in the Family Court down the road. Such problems resulting from the potential commercialisation of the family law system through the setting up of the new family relationship centres need to be addressed now and not as an ad hoc and retrospective measure when it may be too late for many separated families and the damage has already been inflicted.

We also need greater clarity now. The government has promised three free hours of counselling for all separated couples using family relationship centres, but this is not enshrined in the legislation and we may not be able to rely on this at a later time. If a government later on decides that that mediation is not free then families who are already struggling with having to set up two households under extreme financial difficulties may have to pay for this service further down the track. Labor is also cautious of potential dangers which could arise from privatisation and the profit imperative of the family relationship centres, particularly given the recent reports about migrant settlement services and the Job Network operating under similar kinds of guidelines.

We also have some concern about domestic violence. The government’s recent actions in ordering a new inquiry into speeding up violence cases in the Family Court is welcome, but it does call into question its past refusal to address Labor’s concerns regarding the violence provisions of this bill. When we look at the violence provisions of the bill, we see that the Howard government is once again regulating for the worst case scenarios—those very few where people bring false allegations of violence.

Labor is calling for the deletion of the new definition of family violence in this bill, which requires the victim to prove that they reasonably fear or are reasonably apprehensive about their personal wellbeing or safety. A potential problem which arises from this objective test is that it will not involve a consideration of the personal circumstances of the victim, such as a history of violence or abuse, which might make a person more inclined to feel fear in circumstances where another person might not. It is unreasonable to require a person to attend compulsory mediation with someone they fear, whether or not that fear is reasonable. Fear puts the parties in unequal bargaining positions, which risks creating unfair outcomes. The result of such mediation must be questionable in these circumstances.

Labor calls for the deletion of the word ‘reasonably’ and a move back to the current definition as well as the amendment of the definition of violence so it includes circumstances in which a child witnesses violence or is exposed to violence. We also suggest that the government look at the state model, which defines domestic violence by the actions of the perpetrator rather than of the victim of those actions. In other words, domestic violence relates to the actions that one person commits against another and not necessarily whether or not the victim of those actions feels or could reasonably feel fear. Labor also calls for a provision demanding accreditation quality standards for the family relationship centres before dispute resolution becomes compulsory, especially with qualifications regarding screening for and handling of violence.

Labor is also looking for the deletion of the provision concerning cost penalties for false allegations of violence. Evidence suggests that the underreporting of family violence is a much bigger problem than false allegations and that these cost orders may dissuade people from raising genuine concerns about violence. The provision would introduce a cost penalty against people who knowingly make false allegations. The provision requires that a court must order a party to pay some or all of the legal costs of the other party if it is reasonably satisfied that they knowingly made a false allegation or statement.

There is a concern that punishing people who make false allegations of violence—although that is absolutely justified—may dissuade those who have genuine concerns about violence from raising them. Family violence can be notoriously difficult to prove and people might feel that it is not worth the risk that they will not be able to substantiate their allegations and thus face a penalty. Evidence suggests that the underreporting of family violence is a much bigger problem than false allegations. This section of the bill could have the effect of capturing many innocents in its net and punishing the true victims of family violence, who will be too scared to speak up because of possible cost penalties and related fears. The realities of underreporting violence are being ignored in favour of low context policies which assume that everyone can be treated the same, in effect punishing the many because of the few isolated cases where false allegations of violence are made.

But there is substantial good in this bill. We welcome the move towards reducing litigation and the focus on family dispute resolution through non-court means. However, if the government imposes on people the obligation by introducing compulsory family dispute resolution before they are able to commence court litigation, it needs to provide the means to implement this effectively and fairly. The government has said that the first three hours of mediation will be free. However, this is not yet found in the bill. It is not found in the bill that that mediation will be free indefinitely. Labor calls for an amendment inserting a provision guaranteeing that three hours free consultation so that the compulsory nature of family dispute resolution is tied to a government promise that this will be available and free in the future.

Also, the new requirement that all applicants for parenting orders attend family dispute resolution sessions and that the applicant must provide a certificate which says that the applicant has attended or tried to attend mediation, and says whether or not in the opinion of the practitioner both parties made a genuine effort to resolve the issues in the dispute, creates some difficulties. Labor has serious concerns about how certification of non-genuine participation might work in practice—ranging from, for example, the opinion of a single practitioner, lack of standards about meaning of ‘a genuine effort’, quality control mechanisms and uncertainties surrounding the effectiveness or otherwise about screening processes for cases involving family violence. A person may appear to be participating reluctantly not because they are obstructive but because they feel intimidated. Therefore, that section may become a backdoor way of turning the Family Court into a costs jurisdiction. What needs to be recognised and enshrined in this legislation is that each relationship is complex and that the government cannot and should not always prescribe answers for one size fits all. In certain instances the court will remain the best realm to determine what is in the best interests of the child.

We on this side of the House are glad that the government has moved when drafting this bill some way from its past focus on the rights of parents towards a greater recognition of parental responsibility and the best interests of the child being the paramount consideration when determining parenting disputes. The new section 60CC comes directly from Labor’s suggestions. It recognises that parenting is a two-way street, that parenting rights come with parental responsibilities. Labor has called for explicit consideration of how a parent fulfils obligations to the child in considering custody arrangements in the court. Labor has been strong in calling for a two-way street.

In the original exposure draft the government introduced the new requirement in section 60CC to consider the extent to which a parent has fulfilled or failed to fulfil his or her responsibilities as a parent, including whether a parent has taken or failed to take the opportunities to participate in making decisions about major long-term issues, whether the parent has spent time with the child and communicated with the child, the extent to which a parent facilitates the other parent taking up these opportunities and the extent to which a parent fulfils or fails to fulfil the obligations to maintain the child. They are excellent changes. They ensure that a parent who really is using the child to bludgeon the other parent will be assessed on their capacity as a parent and their relationship with the child in any further claims that they make.

We are also pleased with the changes to the test for the best interests of the child. The new bill, the bill we are considering tonight, has changed considerably from the earlier drafts, and it introduces a hierarchy of factors with primary considerations and additional considerations. The primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from abuse, neglect or violence. These are also excellent changes.

Labor are positive, on the whole, about the government’s attempts in this bill to make serious reforms to family law, but we believe there are still some issues that need to be addressed and we have addressed those in our second reading amendment. But on the whole, it is a great change, it is a great step forward for parents seeking to raise their children apart, and we commend the bill.

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