Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Hansard source

Labor welcomes the introduction of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 into the parliament and supports the overwhelming majority of the provisions in it. The gestation period of the bill has been over three years and much of the groundwork was laid by bipartisan committee work in this House. Family law is not and should not be about a political battle between the Liberal and Labor parties or a tug of war between mums and dads. Family law is about providing for and protecting children. It is children’s interests that we are tasked to take care of when we are debating this bill. We must not forget that the children are the very reason—really the sole reason—that the parliament is involved at all in intervening in this tricky area of family relationships.

The public interest, the debate and the long lead time for these particular family law changes are also indicative of the complex and difficult area that family law is and the determination that I think all of us in this House share in trying to make these laws as good as we can.

Of course society has changed over 30 years and we need to make sure that our laws reflect this. We also need to remember in this area of law, more so than in many others, that the law cannot fix the pain and disappointment that many people inevitably feel when their relationships break down. We cannot turn family law into a proxy debate about a wide range of other social problems. It is just unrealistic and destined to disappoint if we pretend that family law, no matter how we change it, will make people forget the hurt they feel when their families break up.

It is easy to see how the media and certain lobby groups are attracted to the sensational ‘battle of the sexes’ rhetoric. But it is a trap that politicians should avoid, because family law is about something much more important than parents’ rights: it is about children. Given this, we should be more concerned about parents’ responsibilities than parents’ rights, because that is what will benefit children at the end of the day.

In this speech I am going to take the time to carefully set out Labor’s position on family law. I intend to go through the many parts of the bill we support, to highlight and make suggestions for those that we think can be improved and to express our reservations about how some aspects may work when implemented. We support the measures that encourage shared parenting. It is a positive development that more and more parents, mums and dads, realise the value of staying in active contact with their children after separation. In particular, the last decade has seen a great change in the numbers of fathers wanting to play a significant role in the care of their children, and it is appropriate that the law recognises that patterns of parenting are changing. At the same time, mums are still providing the majority of care for children in the community. I guess the point of raising both of these facts is that it is important that we realise that all families are different. This means that we have to be very careful about prescribing one-size-fits-all solutions in family law.

We also support the measures in this bill that are trying to simplify court processes involving children and to make them less adversarial, and the measures to solve as many matters as possible outside the courts. This picks up the process that is being trialled in the Sydney and Parramatta registries with respect to the court processes. The Family Court is undertaking that pilot project as we speak. We note that the final assessment of that trial has not yet been completed and we do hope that the government will commit to reviewing these changes, if necessary, in the light of that report when it is provided.

Labor supports changes that will promote family dispute resolution outside the courtroom. This has the potential to save a lot of time, money and frustration. This bill is part of a package that includes a significant new government contribution to the funding of family relationship services. It includes $200 million towards increased funding of services under the existing family relationship services program. Labor enthusiastically welcomed this new money when it was announced. Indeed, we had been arguing for a number of years that these services had been sorely neglected by the Howard government.

We also welcome the plan to establish a network of 65 family relationship centres. Well managed and properly resourced, this network could provide an invaluable addition to the family law system—a shopfront and entry point for advice, referral, counselling and mediation services. But being well managed and resourced is the key, and we will be closely watching these services to make sure they are well managed and resourced—but  more of this later.

So it is clear that many of the good ideas in this bill are well supported by Labor. And this is no surprise, because many of them came out of the bipartisan work of the House of Representatives Standing Committee on Family and Community Affairs several years ago, which produced the important Every picture tells a story report. Labor is proud of the contribution that our colleagues made to that report. Further, a number of aspects of this bill we are debating today come from a later review conducted by the House of Representatives Standing Committee on Legal and Constitutional Affairs, which scrutinised an earlier exposure draft of this bill. I will come later to a number of recommendations made by that committee.

At this point, though, I want to note that this bill now includes two important provisions that stem from my dissenting report in that LACA review, which will temper the rights focus of the earlier draft of the bill, with two new important responsibilities for parents. Section 60CC, which outlines the best interests of the child test, will now require the court to consider the extent to which each parent has taken up opportunities to spend time with and communicate with the child, be involved in major life decisions that affect the child and paid maintenance for that child. Section 70NCA will allow costs to be awarded against parents who make repeated nuisance claims that the other parent has breached parenting orders. Yes, they certainly must have the right to complain, but now they also have a responsibility not to abuse that right. These are tremendously important new provisions which I believe should help make sure the balance of the Family Law Act when these changes have gone through is right.

My concern, which I have raised in many other places, including in my dissenting report, is that if we focus too much on rights we risk turning a blind eye to irresponsibility. The law cannot promote rights without responsibilities. When you do so, you run the risk that people will abuse those rights. While the vast majority of non-resident parents—as well as the majority of resident parents—take their responsibilities seriously, we believe the exposure draft would have rewarded those who do not. In the process it would have created huge problems in those situations where a non-resident parent is more concerned with controlling their ex-partner’s lives than actually maintaining a meaningful involvement in their children’s lives. So these changes are important and welcome.

Having set out the areas in which there is agreement between the government and the Labor Party—and they do cover the main aspects of this bill—I will turn now to some of the concerns that Labor does have with this bill. Labor’s most significant concern is to make sure that this package protects people from family violence. We believe there are parts of this bill that could be better worded to afford greater protection, and we will be moving amendments accordingly. Labor believes that the issue of family violence has to be taken seriously; it cannot be brushed aside just because it is a difficult issue.

The first area for improvement of the bill involves recognising the way violence affects mediation and parenting plans. While resolution of disputes outside the courts is to be encouraged, we must be sure that these resolutions are genuinely made in the best interests of children, which means they must also be absolutely free of bullying, coercion and intimidation. If we are to make mediation compulsory and give new force to parenting plans agreed to without any professional or legal advice, we need new precautions to make sure that violence and fear are not influencing the agreements that are reached. Some of our amendments go directly to these issues. For example, we propose a cooling-off period for parenting plans and a clear rule that these plans are not valid if obtained under coercion or duress. On this latter point, I understand we have been advised today that the government will accept our amendment in respect of coercion and duress—and that is obviously welcome news.

There is a specific change proposed in the bill by the government which we believe could make matters significantly worse in the area of violence, and that is the planned change to the definition of ‘family violence’. It was only on Sunday that the government announced that the Australian Institute of Family Studies is going to undertake a research project into family violence and family law. But before the government even gets the results from this inquiry it wants to change the definition of violence, with next to no reasoning or basis for doing so. Certainly, this research is welcome and it will be important for us to get some good quality longitudinal research in this area. But it seems silly for the government to make the decision to move us from a subjective test to an objective test without any real basis for doing so. This, in fact, is a position that the Attorney originally had in his draft bill—a position on which he and I seemed to agree, but on which the members of the House of Representatives Standing Committee on Legal and Constitutional Affairs did not agree.

I must say that I do not think a rushed inquiry, in which a proposal was put forward to look for a better definition, should form the basis for making such a major change, the consequences of which have not been followed through. I am concerned that the proposal that requires a person to show that they had a ‘reasonable’ apprehension of violence is an unsatisfactory approach. Firstly, there is an implication that some forms of violence or threatening behaviour are acceptable as long as a ‘reasonable’ person would not feel afraid. This gets the courts into the very tricky business of deciding what conduct would scare a ‘reasonable’ person. I do not believe we should put the courts in this position, and parliament should be very clear that there is no such thing as acceptable violence.

Secondly, the definition does not provide scope to consider the particular circumstances of the victim—for example, a person who has previously been exposed to violence may be more sensitive and fearful in circumstances where another person might not. Thirdly, an objective definition is not at all helpful when we are dealing with the question of who should or should not attend mediation. When it comes to mediation, frankly, it does not really matter whether or not one person’s fear is reasonable. Even an unreasonable fear will affect the power balance between the parties. It is simply not fair for us to force people into mediation if they are absolutely terrified. That cannot be a legitimate participation in mediation. At the very least, Labor has a strong view that a subjective definition must apply for the purposes of the exception to compulsory mediation. As I have said, I think the Attorney and I agree on this issue. Our colleagues on the House of Representatives Standing Committee on Legal and Constitutional Affairs, on both sides of the House, did not agree, and they made a suggestion after the short inquiry. But I am fearful that the consequences of that proposal were not carefully considered.

There is, of course, another option between the objective and subjective definitions of violence. The style of definition that applies in the state laws on restraining orders actually defines the conduct which the law deems to be violent regardless of the effect it has on the victim. This may be a better approach, although I can see that it would also have some technical difficulties. It is my hope, given that a Senate committee has now been set up to look at this bill, that the committee will take some time to consider whether the Commonwealth should go down that road. If we are not sure, we should not change a longstanding definition of violence without understanding the consequences. The government has now announced a thorough review in this area by an independent research body. If we are not sure of the consequences of a change as significant as this, we should wait until we have the results of that inquiry.

Labor is also concerned about the provisions to impose costs orders for false allegations of violence. Labor understands that it must be devastating to be falsely accused of violence against your children or partner. However, it also needs to be acknowledged that the current evidence and research suggest that we have a much bigger problem in Australia with the under-reporting of domestic violence than with false allegations. This is the evidence that the House of Representatives Standing Committee on Legal and Constitutional Affairs heard from the Law Council, the Family Court and others. Given this, the last thing we want to do is create a disincentive for raising genuine concerns. Labor is worried that a costs penalty would send the wrong message to victims of violence, telling them that it is much safer to stay quiet than to risk a costs order against them if they cannot be 100 per cent confident that they can prove that the violence has occurred. Interestingly, this is another area in which the Attorney and I agree. It was the initial position put forward by the Attorney in the exposure draft. Labor stands ready to support the Attorney if and when he chooses to revert to his original position.

As an aside, I want to flag Labor’s concern about the increasing incidence of using costs within the family law jurisdiction each time we make changes to the law. We are concerned that we might, by a back door, be turning family law into a costs jurisdiction. That is, of course, a very serious change and we should tread very carefully.

There are a number of other proposed amendments that we have provided to the government which will be debated in the detailed debate on the third reading, including the definition of ‘exposing children to violence’ being included within the definition of ‘violence’. We intend to move those specific amendments on those issues in the committee stages and I hope that the government will consider adopting a number of those amendments when we do that.

As I already mentioned, the bill is going to introduce a new system of compulsory mediation with some limited exceptions. Labor supports this shift as it could help that category of cases in which separating couples have not been able to reach agreement on their own but are not so entrenched in their attitudes and disagreements as to require final orders from a court. Indeed, we can recognise that the adversarial nature of court proceedings can, of themselves, sometimes make reaching agreement even more difficult. In these cases, compulsory mediation before litigation could act as a useful circuit-breaker, before disputes escalate. However, compulsory mediation could carry some serious consequences if it is not implemented in the right way.

We want to express some caution about the changes and we would like to make sure that compulsory mediation will require the following conditions. Firstly, mediation has to be accessible if it is going to be effective. We welcome the government’s promise of three hours of free funding in each case. We are not confident it will be sufficient in all cases but we think it is important that the government has made that commitment. We want this to be a commitment that is actually in legislation as a precondition for compulsory mediation. We are concerned that if the government changes its mind in the future—if this becomes another ‘non-core’ promise of the Prime Minister—people will still be obliged to go to mediation but will not have the financial support that the government at this stage is prepared to provide. We cannot and should not put a new requirement in place for people to attend that mediation at their own expense, so adding to the costs of people who are going through family breakdown. We do not think that would make it cheaper. Of course that would make it more expensive. There is a specific amendment that people on both sides of this House can vote for to put that promise into law. We will be urging all members of the House to vote for that.

Secondly, for the implementation to work, staff must be well trained. I think all members of this House agree that cases involving family violence or entrenched conflict are not suitable for mediation and should be dealt with in a formal court setting. In practice, in order for us to get that right, we need to be confident that family relationship centre staff can recognise the signs of violence and entrenched conflict and understand how to make appropriate referrals. If mediators do not do this and try to force mediation in inappropriate circumstances, we may have some disastrous, even tragic, outcomes on our hands. Similarly—and acknowledging the complex emotional context of family separation—FRC staff need to be adequately trained in dealing with violent situations if they arise in the course of mediation.

Thirdly, we want to make sure that the government can assure us as to the quality of the services that will be provided. Training staff is going to be vital, but it will not be enough. The government must also ensure that the quality of mediation services are of a consistently high standard. I am alarmed that the government’s operational framework documents contain key performance indicators which seem to prioritise the quantity of parenting agreements reached, rather than the quality of services provided. We need to make sure that the incentives given to the centres are right. Too much focus on quantity could actually encourage staff to push people into agreements that are not sensible or appropriate, because staff are rewarded on the churn rate. We are talking about dealing with complex family relationships here, not sausage factories, and we should make sure that our assessments of the services are appropriate, so we will be watching the implementation closely. We are in the situation of debating this bill in the House without any accreditation details, without a complaints process being in place and without any information about how the new family relationship centres will actually be overseen by government.

Fourthly, it is important that the centres not pursue an ideological, political or religious agenda. These centres are going to be funded by government to provide services, not to promote their own agendas. We know that there are many views within the community on issues like relationships, divorce, parenting and so on. These are complex social issues, and I think our society benefits from hearing many different points of view. But government funded relationship services should not be used as vehicles for this sort of advocacy or for evangelising or social engineering. The Attorney has to take a personal interest in and responsibility for making sure that this does not happen. The centres must not discriminate. If these centres are to be accessible and available to all people, the government must ensure that they do not discriminate on the grounds of gender, ethnicity, religion, disability or socioeconomic disadvantage. We are trying to get put into law a number of these important guarantees that are in specific proposals that we have. Some of them are included in the second reading amendment that I will move in a moment.

At the end of the day it is important that the government understands that, while it has our support to go down this path, it needs to make sure that the implementation process is going to turn this into a real change that works for Australian families. We have some reasons to worry about how effectively the government will do this. In recent years the Howard government has developed a record of administrative incompetence—another sign that 10 years on the government is passing its use-by date. Only this month we have seen revelations of incompetence in two funding programs similar to the one proposed for the FRCs roll-out. Firstly, there was the scandalous mismanagement of the Job Network, which the government heralded as the model to be used for the family relationship centres. In that case, we have seen overpayments resulting from providers fudging their figures—another side effect of the narrow, quantity based performance indicators which are used by a government too lazy to put in place genuine quality assurance mechanisms. Secondly, we have seen in the media the issue of entities associated with the Hillsong Church overspending government grants on internal ‘administration’ costs, with little going to the Indigenous communities that the money was intended for. In this case, the Attorney’s own department was implicated, having failed to check properly on references.

So in the case of family relationship centres, we do have some reason to be cautious and concerned, so competent implementation—and we urge this—is going to be essential to the effective operation of the legislation that we are debating. For this reason, on the passage of this bill the opposition will closely watch the FRCs roll-out, and we expect the Attorney to be completely transparent about this process. He would be aware that I have made a freedom of information request for a number of documents that have not been provided at this stage. Their provision would help ensure that the process is transparent and not political. We need to make sure that he is held personally responsible if this system does fail. He cannot be allowed to ask us, while we are debating this bill, to trust him on its implementation and then not be held accountable for any problems that occur further down the track. I now move my second reading amendment, which is quite long as it does encompass a range of our concerns and a number of issues that other speakers on our side of this House will want to discuss during this debate:

That all words after “That” be omitted with a view to substituting the following words: “whilst not declining to give the bill a second reading, the House:

(1)    notes that the first priority of family law should be to promote and secure the best interests of children and that this requires a focus on:

             (a)    the responsibility of parents to care for, love and provide security to children

             (b)    the need to prevent children from being victims of, or exposed to, violence, abuse or neglect, and

             (c)    without compromising the above, the benefit to children of knowing and spending time with their parents;

(2)    notes that, despite this Bill, the Howard Government has made shared parenting before and after separation more difficult through its constant attacks on Australian families, such as the recent industrial relations changes and its failure to meet the chronic child care shortage;

(3)    notes the risk that the Government is creating false expectations that this Bill will create a right for parents spending equal time with their children, when the Bill does not do this, in many cases this would not be appropriate and it shouldn’t automatically be the starting point for negotiations;

(4)    notes that the Government has improved its Bill by adopting Labor’s ideas that:

             (a)    for parents intent on demanding parental ‘rights’,  the Court will consider the extent to which parents have exercised their responsibilities as parents -  recognising that parenting is a two-way street;

             (b)    strengthened compliance measures should be coupled with costs for nuisance complainants, so that the right to seek a remedy cannot be used irresponsibly;

(5)    notes that the effectiveness of these reforms will fundamentally depend on the implementation of the Family Relationship Centres program, so that these centres can provide appropriate advice, counselling and referral as well as dispute resolution services and calls on the Government to commit to:

             (a)    providing adequate resources to Family Relationship Services and Centres;

             (b)    regular reappraisal of needs and funding to ensure free services;

             (c)    requiring that Family Relationship Centres focus on quality advice, not simply quantity of parenting plans;

             (d)    equipping staff to detect the signs of family violence and child abuse and manage violent clients;

             (e)    ensuring that Family Relationship Centres do not discriminate on the basis of race, religion, age, disability, gender or socio-economic disadvantage and are not used to advocate or encourage any particular political or religious agenda;

              (f)    instituting a well-resourced and effective complaints process for people who have grievances with Family Relationship Centres or their staff;

(6)    demands that the Government immediately release accreditation and quality standards for Family Relationship Centres prior to mediation becoming compulsory;

(7)    notes that, while separating parents should be encouraged to settle their disputes without recourse to the Courts, litigation needs to be recognised and supported as a vital pathway for those cases involving family violence or abuse, entrenched conflict or intractable disputes;

(8)    notes that the Government needs to invest in and make public thorough, longitudinal research on:

             (a)    the consequences of family law reform;

             (b)    interaction between violence and family law; and

             (c)    the need for a broad ranging parliamentary inquiry on violence in the community;

(9)    notes that the Government should, in the near future, conduct a review of how these changes work in practice, with particular consideration of the following issues:

             (a)    the operation of the requirement to consult on ‘major long-term issues’  (compared to the original recommendation from the Every Picture Tells a Story report limited to location);

             (b)    the interaction of parenting plans and court orders:

             (c)    the need to review Schedule 3 as soon as the assessment report of the Family Court’s pilot of the Children’s Cases Program is available, given that these changes are being made before that pilot is completed and evaluated;

(10)  notes the Government’s failure to consider a National Commissioner for Children and Young People, who could provide a role developing expertise in supporting children in family law matters”.

With this long list of issues I could speak for days on the changes that Labor would like to see and the many areas in which the government is taking positive steps, but time is against us. I do want to issue a final note of concern that Labor has in this general area of family law, and that is that the government is creating some false expectations about how family law is going to work under this bill. Although the government agrees with Labor, the original committees and all the processes that have assessed this proposal from the beginning that a presumption of equal parenting time is not the way to go, it is sending very mixed messages.

One example of this is the change of the term ‘joint shared parental responsibility’ to ‘equal shared parental responsibility’—another one of those issues where the Attorney-General and I seem to have the same view but where the LACA committee has made a different recommendation. Responsibility for children is not a quantifiable thing that can be cut into two equal parts. Clearly what we are talking about is ‘joint’ responsibility: an obligation for parents—whether together or separated—to make decisions that affect their children together. Changing this term, as the bill proposes, is clearly intended to muddy the waters, with the naive hope that the equal time advocates will not realise that the government disagrees with them on this issue.

It may be that there are people in this House who think that we should just let this debate go through and not raise any concerns about this. But I am concerned that in family law—more so than in many other areas—false expectations have a consequence. Firstly, a lot of nonresident parents will only feel more frustrated when they realise that the government has not given them the change they thought they were getting. It worries me that it is not the government but the family relationship centres that will bear the brunt of this frustration, just as the Family Court did in its early days. Secondly, in the other direction, some victims of family violence may develop the false view that they cannot stop their abuser from having contact with their children. I am advised by some service providers in the sector that this is already happening, mostly involving women who, despite their fears and concerns, feel that new laws mean they will have to accept equal time.

Because we know that a large part of family law is about expectations and that the perception that the Family Court is biased against men affects the view that many men take into negotiations, the government needs to be particularly responsible about managing expectations and combating false perceptions. I worry that the Howard gove

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