Janelle Saffin (Page, Australian Labor Party) Share this | Hansard source

I rise in support of the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. I do so because this is a bill that is designed to improve the situation regarding the best interests of the child and it is about safety of children. We will disagree about ways in which this can happen, but I think all members would agree that if we are dealing with legislation involving children, the safety of children has to be the primary principle, the starting point. In family law that is not always easy. In fact it can be quite fraught. Family law is an area that legal practitioners either embrace or eschew, which is indicative that it is not an easy area to work in. I commend those legal practitioners and others who choose to work in this area, many of whom love doing so and do it extremely well. It can be really difficult to determine through the prism of law and courts, in a system that might have parts grafted into it involving mediation or working out what is in the best interests but ultimately still within that conflict paradigm, because that is how a lot of our court systems operate—in a contested environment.

I really want to commend the Attorney-General for the work he has done in this area. He has done it methodically and forensically over a period of years. He has been mindful of the reviews, mindful of public opinion and very mindful that some changes needed to happen in this area, if not to get it completely right—I am not sure how you can ever do that—then certainly to make it better. That takes me back to looking at the 2006 evaluation done by the Australian Institute of Family Studies. They looked at the impact of the changes, which included the introduction of the presumption of shared parental responsibility in the Family Law Act 1975. That was taken up in the community—not in the legislation itself but the way it was inculcated into the community and the legal community—as meaning equal parenting; equal time. That seemed to be a push by some, but a reading of the legislation did not say that.

Shared parental responsibility is certainly something that was widely supported, and is still widely supported. In fact, that is what a lot of parents do—they just get on and do it and they do not need to be in the Family Court. Once you are before the Family Court, you already have a problem. You are not there because everything is hunky-dory and everyone is getting on—though some people do rock up and get their agreements registered and things like that. You are there because there is discord and disagreement, and in some situations there is violence. That has never been an easy matter to deal with, either, within the Family Court system.

If you are looking after protecting the best interests of the child, that is done at a state level with state agencies and then you have the situation where you are going before the Family Court, the two parents and a child or children, and raising the issues. My experience has seen a reluctance on the part of state agencies to get involved, because they say it is a matter before the Family Court, yet they have a primary responsibility to that child. I have always found a gap in that area. That gap still exists, and that is something that still needs to be tackled in a broad sense. Some of the children who are subjected to violence or abuse or are in a situation where they are affected by it in certain ways, if not directly physically then psychologically and in other ways, are falling through the gaps. That is a hard area that requires a lot more to happen at state level, and I hope that the Standing Committee of Attorneys-General has that on its agenda.

The Australian Institute of Family Studies also found that the principle of shared parental responsibility, although widely supported, was misconstrued often as requiring equal shared care time and led to unrealistic expectations among some parents. Therein lies a problem as well. They also found that the majority of parents in shared care arrangements believed they were working well but there were concerns where ongoing fear of violence existed, and these were concerns and situations that were not being addressed and needed to be.

Then there was the Family Courts Violence Review, conducted by Professor Richard Chisholm, and also the Improving Responses to Family Violence in the Family Law System review, and that was carried out by the Family Law Council. They looked at the effectiveness of legislation as well as court practices and procedures, particularly in cases involving family violence, which was what it was about. We found after these reviews that there was still a long way to go in effectively responding to issues relating to family violence. They actually said some way to go, but my comment is that there is a long way to go in that area. Hence we have had a series of consultations with the public, and there have been submissions. I have received submissions and I have put forward submissions from my area, and they have been broadly supportive of effecting some change in this area and a recalibration, if you like, of the Family Law Act to make sure children's interests are taken care of. People often say if we stop a parent from seeing a child, more violence could ensue, but my reading of all the research and statistics shows that the violence usually happens during access. It is not a case of stopping access, but I want to put that point on the record.

The Attorney released some new research, I think in May, and again it was from the Australian Institute of Family Studies. It found that interparental conflict, fear, abuse or safety concerns remain prevalent for a significant number of parents following separation, and that almost one in four parents experienced family violence before their separation, and in many cases children had witnessed some of the abuse or violence. That is consistent over a long period of time with the statistics that we have about family violence and domestic violence. We know it is still prevalent in the community and we know that when parents separate and there has been violence in the broad sense of the definition, not just the physical, that does not stop. That gets played out in a range of ways, and it gets played out in the ongoing relationship that the parents have to have with the children. It can then get played out institutionally through the institutions. It has been a real problem. I have talked with many parents in that situation, particularly women. I am doing that at the moment, and they just feel rather bereft—they feel that the law is not helping them or their children in any way, and they do not know where to turn. I know some of them are keen to see the changes this amendment will bring, but some of them say it does not go far enough. There will always be comments like that, but it is a matter of how far you can go in this area.

The Attorney-General, in his second reading speech, said:

The bill will amend the Family Law Act 1975 to promote safer parenting arrangements for children.

As people who pass laws we need to be mindful that the laws we pass do precisely that. The Attorney-General further said:

Firstly, the bill will prioritise the safety of children in family law proceedings.

That is really important, because even though the rhetoric has been there for a long time it has been far more difficult to put it into practice within a setting of contestation, accusations, allegations, counteraccusations and counterallegations and where you might get state agencies with a hands-off approach. Then you might have a situation in which the court appoints a legal representative for the child. That can be helpful, but that is not properly worked through either. The child has their own lawyer and the parents have their own lawyers, so you are adding some more people into the mix. Sometimes they are told that the parents are not able to talk to the children about certain things. As I said, it is a fraught area. There are no easy answers, but this amendment will give a bit more certainty to those safer parenting arrangements for children and a bit more certainty around the interest of the child being first and paramount.

This amended act will include an additional object to give effect to the United Nations Convention on the Rights of the Child, to which decision makers may have regard when dealing with children's matters under the Family Law Act. Under our legal system that does not happen just of right. It has to be legislated so that it is in there. That will give the decision maker some extra tools for doing what they do now, which is looking at the child's best interest. That is really important, and I know a lot of people have welcomed it.

It also strengthens the obligations of lawyers, family dispute resolution practitioners, family consultants and family counsellors to prioritise the safety of children. So there will be that legislative requirement as well, and it is important to have that in there. To that end, the courts dealing with children's matters will have to ask the parties to proceedings about family violence and child abuse. That is seminal, because if you do not ask you often do not find out. I recall that when people presented to hospitals with accident emergencies the question of whether they were victims of domestic violence never used to be asked. That was changed first of all in New South Wales and then around Australia. And—surprise, surprise!—when the question was asked they found out. Asking that question is really helpful in getting a better outcome for the child, and that is what this legislation does. I commend the Attorney-General and I commend the legislation.

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