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

by leave—I move amendments (29), (30), (31) and (32) together:

(29)  Schedule 1, item 11, page 13 (lines 34-5), omit

                      “, and that all attendees made a genuine effort to resolve the issue or issues”.

(30)  Schedule 1, item 11, page 14 (lines 1-6), omit paragraph (8)(c).

(31)  Schedule 1, item 11, page 14 after sub paragraph (iv) (after line 29), add

                 ‘(v)    at least one of the parties would fear for, or be apprehensive about, his or her personal well-being or safety, or that of a child, if family dispute resolution was to take place; or’

(32)  Schedule 1, item 11, page 15 (line 7), after ‘services’ insert

                      ‘, inability to make an appointment with family dispute resolution services within six weeks,’.

These amendments deal with a range of issues that go to the new process of mediation and the requirement that people attend mediation, obviously with the aim of resolving their parenting disputes but also as a prerequisite to filing any litigation in court if they have to go down that path in the future.

Three areas are covered. The first one revisits this issue of the definition of violence. It would not have been necessary to move this amendment if the first amendment moved in my name was accepted, but it has not been. I feel very strongly about this issue because I think that we are missing a serious point. Encouraging people to mediate and reach an agreement freely together on the long-term and future parenting of their children cannot be done in a fair and equitable way if somebody is absolutely terrified to sit in the same room as another person and try to negotiate that agreement. This is not in any way to try to encourage people to use violence or fear as a way of avoiding mediation.

I think that the rest of the structure of the act makes sufficiently clear that there is a necessity to go through this mediation in all circumstances where that is possible. I do not think that it should be up to a court or somebody else to make an assessment. In fact, in this situation, it is not a court; the somebody else is an individual person who might be working at the front desk of a family relationship centre, who would make an assessment of whether or not they feel that the violence that the person is afraid of is reasonable or not. As I say, there is simply no argument that reasonableness should come into it when we are trying to look at whether two people can freely negotiate an agreement about the future parenting of their children. If I have to go into that room and I am absolutely terrified, it does not really matter whether that is a terror that is legitimate or not to other people, it still means I will not be able to participate adequately to negotiate a fair agreement for the future.

I think that it is ignoring the extensive work that has already been done about the imbalance in power that often occurs in mediation. It is something that experienced mediators know that they need to deal with. I think that it is a really dangerous and retrograde step that the government is going to take if it is not prepared to make clear that, in those circumstances, it would not wish people to be forced through a process which keeps them in sheer terror.

The other two amendments also deal with mediation. One is to ensure that there is an exception to the need to attend mediation prior to filing litigation if the waiting lists are extremely long. We have been very supportive of the government’s introduction of the 65 family relationship centres and we have been supportive of the three hours of mediation that will be provided. We have reservations about whether it is going to be sufficient. We have reservations about the waiting lists that may exist. We do know that it is critically important for families to be able to deal with these matters at the right time in their relationships, which is not always immediately—sometimes it might be better for them to wait for a while. We are concerned that, if this is not made clear in the exception, people may be not only delayed in getting mediation but, if the mediation is not successful, they will then have been further delayed in being able to file in the courts.

Finally we make a proposal about the certificate of attendance. We obviously support the government’s view that you should encourage people to attend and genuinely participate in mediation as best they can. Perhaps there is another way it can be done, but the reasoning behind amendments (29) and (30) is to make sure that the assessment of only one person in a family relationship centre—on a basis which none of us will know about and will not be reviewable by a court—cannot result in a certificate which says, ‘You haven’t participated genuinely.’

This is an issue that has been raised with us by many people who already practise in the area and have great concerns about the consequences of requiring somebody else to issue a certificate of genuine participation. I do understand the government’s concerns in this area and we agree with the purpose, but I do not think that the provision adequately protects anyone from a decision being made by one person due to circumstances which no-one is particularly aware of, are not necessarily reviewable by the court and might have consequences within the court at a later hearing time.

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