Nola Marino (Forrest, Liberal Party) Share this | Hansard source

I do not want to see any legislation or policies from this parliament that affect the decision-making process or the decisions made under the Family Law Act that provide less protection for children and families who are at risk of violence or abuse or both. That is why these proposed family law changes deserve very serious scrutiny. I also do not want to see changes to this legislation used and interpreted by anyone in a way that results in unsafe, unhappy children and even more desperate, angry and frustrated parents. Should this legislation be passed, only time, the experience of families, statistical information and genuine, transparent assessment and reporting will provide accurate information on its impacts.

There is probably no more difficult or contentious part of the Australian legal system than family law. We know why: it deals with relationship breakdown, disputes between separated parents, the welfare of children and young persons, and divorce and property settlement, which are all extremely difficult, contentious and emotive issues. While the Family Court's paramount considerations are 'the best interests of the child or young person' and 'matters relating to the child's protection and care', it is very difficult—frequently impossible—to provide practical, workable or equitable outcomes for those involved.

The explanatory memorandum, in describing the changes being made by the Family Law Legislation Amendment (Family Violence and Other Measures) Bill, says it:

… retains the substance of the shared parenting laws … and continues to promote a child’s right to a meaningful relationship with both parents where this is safe for the child.

I have no doubt that most people believe that under this principle decisions should be made in the best interests of the child in family disputes and that a child should have the right to a fair and proper relationship with both of their parents, which was the intent of the shared parenting provisions introduced in 2006.

The aims of the 2006 reforms were, in part, to encourage greater involvement by both parents in their children's lives after separation. They were also to protect children from violence and abuse and to help separated parents agree on what is best for their children, rather than litigate, through the provision of useful information and advice as well as effective dispute resolution services.

I note that a report by the Australian Institute of Family Studies has confirmed that legislative changes in 2006 placed 'greater emphasis on the need to protect children from harm from exposure to family violence and abuse'. The identification of and response to family violence became more systematic under the 2006 reforms, which have improved some of the ways in which the family law system identifies families at risk of violence. That is an extremely important finding, in my view. The report also noted that the principle of shared parental responsibility is widely supported and that there has been a very substantial shift away from using the Family Court to resolve disputes. This is a very good outcome for all concerned. Another extremely important finding from the AIFS report was that the shared parenting reforms did not expose children to greater risk of violence or abuse. This reflects the intent of the 2006 reforms and the Family Law Act. However, I am seriously concerned that the expanded definition of family violence in the bill before the House may weaken rather than strengthen the protection of the of the 2006 reforms.

As we are aware, many cases that reach court involve abuse and neglect, and the Family Court has to try to make sense of broken families and relationships in making its decisions. Rarely are these decisions viewed by all parties as a perfect solution—indeed, they cannot be—and it would be unfair on those who work in the Family Court to expect perfect outcomes. However, neither is it fair to pretend that people are not hurt by the court in reaching its decisions or that in some cases that hurt is extensive to the point of being potentially life-destroying.

The true 'winners' in the Family Court process are the children and parents who, in spite of their personal circumstances and hurt, are able agree on outcomes and never get to the Family Court at all other than to ratify that agreement. That was one of the AIFS report's findings about the effects of the 2006 reform—that in the substantial shift away from using the Family Court to resolve disputes, people are genuinely putting the welfare of their children first. They are separating and divorcing as amicably as they can to try to make the best of a very difficult set of circumstances. When that happens, the children are the real winners, and the increasing number of parents who have chosen this course of action since the 2006 reforms have allowed their children to 'win'.

For those parents who, for so many reasons, cannot resolve their issues the Family Court is the only option. This bill seeks to address the issue of family violence, in particular the need to protect children from abuse and exposure to abuse; however, in seeking to do so it basically reverses the presumption of innocence—something I am quite concerned about. By removing the need for abuse to be proved, the government by definition is proposing speculation based on unproven accusations. According to the explanatory memorandum to the bill, the new definition of abuse will:

… remove the requirement for the assault to be an offence under an enforceable law in a State or Territory.

It further says:

This means that those working with the Act, including courts, legal practitioners and family members will not be required to have regard to the terms of State and Territory laws when considering whether abuse has occurred. The new definition will remove uncertainty about knowing the elements of an offence and whether an offence has been committed.

The final line—'whether an offence has been committed'—seriously concerns me. The bill proposes to remove the certainty that comes with having to prove abuse and imposes the uncertainty of having the court decide whether abuse has occurred. The existing act defines whether an offence has been committed; the bill before the House removes that certainty. How this provision will be used, interpreted and potentially abused by one or both parents is an issue that concerns me, as does how in practical terms it will work for and impact on parents and children. I am seriously concerned that false accusations may well undermine or cover actual cases of abuse that do need to be exposed.

This bill defines abuse as:

… threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

As I said previously, the derogatory taunts were an issue which concerned me. It may therefore be incumbent upon family law exponents to ensure prospective clients report to the appropriate authorities any repeated derogatory taunts which may be used in future legal action. In practical terms, how will this work? After all, in the case of two parents of otherwise good repute this might be the only differential the court can use to make a decision. Perhaps we may well see both spouses keeping diaries to record any form of derogatory remarks for future court reference.

The Hull committee report in 2003, on which the 2006 changes to the act were based, considered that while the court should of course protect children from violence and abuse, the law should do more to ensure the involvement of both parents in the majority of families. This is what the explanatory memorandum to this bill seeks to continue. In particular, the law should help people move away from the previous tendency to assume that it was best for children to spend most of their time with one parent and only spend alternate weekends and half of the school holidays with the other parent. How does the government propose to ensure that this right to a real relationship with both parents, as enshrined in the 2000 amendments and explained in the explanatory memorandum, will be preserved under the current proposals?

Like many members, I receive constant evidence from people who come into my office with issues. Ten years ago, prior to the 2006 review, a constituent of mine was before the Family Court of Western Australia in a dispute over custody. He was told by the now retired judge that he was not concerned which parent the child was placed with as long as he, the judge, could sleep at night. I know that such a comment—to either gender—can be offensive to the parents. At the time it was a brutally honest reflection of how the decisions were made and what influenced the judge. The reforms of 2006 demonstrate very clearly that there have been changes in this since then. The pain, the resentment and the frustration of being seen as a loser in the Family Court will be with my constituent for life, as it will be for so many others in the community.

As I said, I do not want to see any legislation or policies from this parliament that relate to decisions made under the Family Law Act that would provide less protection for children and families who are at risk of violence and abuse. I certainly do not want to see changes used and interpreted by anyone in a way that results in unsafe, unhappy children and even greater numbers of desperately unhappy, angry and frustrated parents.

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