Rachel Siewert (WA, Australian Greens) Share this | Hansard source

Today I would like to address some specific concerns with the particulars of the Family Law Amendment (Shared Parental Responsibility) Bill 2006 as highlighted in the Greens’ and Democrats’ minority report to the committee’s findings on this issue. But I would also like to reflect on the wider debate on how parenting responsibilities are shared within Australian families—those who stay together, those who go through tough times and those who separate. Beyond the specific issues I have with the changes to family law and the changes to support services for families in crisis that we are considering, I have some wider concerns about how this debate is being conducted and the particular subset of issues that the government has chosen to focus on in this legislation.

I strongly support the direction of social change within Australia that has seen fathers playing, and seeking to play, a much more active and substantial role in the parenting of children than in decades gone by. I believe that we should do more to encourage and support genuine sharing of parenting roles and responsibilities within our society. I think that this social change reflects changing attitudes and expectations within our society, and we are seeing increasing numbers of young Australian men and women who are moving away from the traditional notion of the distant, authoritarian father towards notions of active and nurturing coparenting.

I believe that the government has an important role to play in supporting these developments—in supporting community education about positive parenting, in providing resources to help parents develop their parenting skills and in providing support services to help families in trouble find positive means of resolving their disputes. I also support government’s role in reforming family law to ensure that there is justice and fairness for all. To this end, I support improving family law in Australia.

At this point I think that I should point out that I am a coparent. I coparent my son through an equal, shared parenting arrangement and I have personal experience in the Family Court. I also have an ongoing commitment to the care of other children who have experienced significant trauma in their lives and lost their mother to domestic violence. I know the personal anguish and heartbreak that is associated with family break-up. I know first-hand what it is like to go through mediation, and I have some understanding and insight into what kids go through, and how difficult it is to deal with the life consequences of abuse.

I believe that when relationships break down and families separate, in the majority of cases, the best outcome for the family is one of shared parenting responsibility and as equal a sharing of parenting time as is possible and practical given family circumstances. However, I am concerned about those situations where there is a history of family violence or abuse, or other unforeseen complicating circumstances. Under these circumstances I believe that the safety and wellbeing of the child must be paramount and that a presumption of shared parenting time is not necessarily the best starting point.

Unfortunately, it is a fact of life that domestic violence and family violence are still present in our society. I believe that the government and community, men and women, have done a lot to foster exposure of this domestic violence and to progress its debate within our society. I am deeply concerned that some aspects of this legislation—and the debate that is going around it—have in fact regressed that understanding, and they need to deal with domestic violence in an open manner.

I would like to quote from the National Council of Single Mothers and Their Children in a submission they made to the hearings on this bill:

There is significant research to show that domestic violence and child abuse are very real issues for many women and children, and that separation from an abusive partner can be the most dangerous time for women and children. The proposed reforms not only do not address how the family law system will be improved to protect women and children from ongoing violence and abuse following separation, but in fact create further barriers to women and children achieving safety. The proposed changes take a punitive approach towards women in their attempts to escape domestic violence and child abuse.

I am particularly concerned about the debate around the issues of shared parenting responsibility and the changes proposed by the government to family law. I am concerned they have focused very narrowly on dysfunctional, post separation families and totally ignored the wider issues of how we encourage and support intact families to help them more effectively deal with relationship problems and separated families who are seeking constructive solutions to shared parenting. Measures to improve shared parenting in intact families could help reduce the stress and conflict that lead to family breakdown. The government could make a real difference to the pressures and stresses on modern families that contribute to failing relationships by making some positive changes to help families: by increasing the accessibility and affordability of child care, by changing the work environment to make it more family friendly and by improving access to education and support services for family and relationship skills.

Unfortunately, we have seen a whole wave of legislation in industrial relations and social services, such as Welfare to Work, a combination of which I believe makes it harder for Australian families to balance work and family commitments. There were also changes to tax law that make it economically more difficult to have shared parenting responsibilities, providing tax incentives that only apply if one parent leaves work and do not apply if both parents try to work part time. We have seen changes to industrial relations that make it harder for parents to set aside family time, creating a more flexible workforce where employers can unilaterally set work hours rather than encouraging more flexible workplaces. We have seen changes to Welfare to Work that effectively force many single mothers back into the workforce at a minimum wage without what we consider to be adequate provisions to ensure the care and wellbeing of their children. Those changes put more pressure on parents and make it more difficult for them to share their parenting responsibilities. They will arguably create more work for the courts and relationships counsellors, not less. Some may argue that I am trying to make yet another political point. I am not; I am merely pointing out that these are the issues that families are dealing with every day of their lives.

The initial idea behind increasing the focus on mediation and alternative dispute resolution was a very good one. There was a real possibility for the new family relationship centres to be an effective preventative strategy to reduce the amount of family break-up. Unfortunately, with the focus of this legislation on compulsory mediation, which I will touch on shortly, as a pre-court requirement for families that are already effectively separated, it seems that this opportunity will be lost. The family relationship centres will be swamped with difficult and intractable cases in which there is little way to go forward. It is quite likely that that will make them less pleasant and scarier places for those genuinely seeking relationship support services. It is likely to be increasingly hard to find an appointment slot for voluntary counselling or mediation when there are so many others who are required to attend.

It is also unfortunate that there has been what I believe to be skewed references to the outcomes of the Family Court. We need to bear in mind that it is the extremely difficult cases that end up in the Family Court, so it is hardly surprising that the so-called requirement pressed by some sectors of our community for always having a fifty-fifty outcome is unlikely to be reached, when these cases are the most difficult and heart-rending cases that have to be dealt with in family law. I believe that the principle by which we need to look at family law is the best interests of the child. This must remain our No. 1 priority. The system must ensure the safety of children and women from abuse and violence. We must focus on the rights of the child and the responsibility of the parents. Prevention and support is better than mediation, which is, of course, better than court. Shared parenting is a two-way street.

I will now deal with some of the aspects of the bill that we have particular concerns with. We are concerned, although there has been a move to equal shared responsibility from a presumption of equal time, that this still creates a situation in which the rights of the parents to equal time or substantial and significant time are put ahead of the child’s best interests. As the Women’s Legal Services Australia points out, this leads to a:

... pro-contact culture that promotes the right to contact over safety—

which—

... undermines the child’s best interests in that it fails to properly prioritise the adverse effects on children of being exposed to abuse.

Provisions which require consideration of specific types of parenting arrangements, whether they call for equal or substantially shared time, necessarily direct attention away from a free and open consideration of what arrangements may be in the best interests of the child in any specific case. That is why the Greens believe that a presumption of equal shared responsibility should not be introduced and that each case should be considered on its own merits. We prefer the use of the phrase ‘joint shared responsibility’. We are concerned that the two-tiered approach of having primary and additional considerations when determining the best interests of the child does not consider the best interests of the child. The Greens support the retention of the current structure of the act. We are concerned that the child’s views will be relegated to the list of additional considerations, effectively putting the parent’s desire for access ahead of the child’s need for security.

When there is a history of family violence or abuse, the two primary considerations in this section of the legislation, those of the child having a meaningful relationship with both parents and of protecting the child from harm, effectively cancel each other out, as it is impossible to maintain a meaningful relationship with an abusive parent and still protect the child from harm. I believe that the term ‘meaningful relationship’ needs to be clearly defined in the legislation to make it clear what a meaningful relationship is—that is, one where a child has not been exposed to or put at risk of violence, abuse or neglect. Without this being done, a parent can be put into an untenable situation of being required to facilitate an unsafe relationship.

This is of particular concern because the changes proposed to the definition of ‘family violence’ and the costs of false allegations create a situation in which the level of unreported family violence is likely to increase substantially. On the issue of the definition of ‘family violence’ and the costs of false allegations, significant concerns have been raised in committee hearings about the proposed changes to the definition of ‘family violence’. The Family Issues Committee of the Law Society of New South Wales submitted:

Family violence is complex. In all but the simple cases family violence is not just an action, it is a course of actions. It is not just an event, it is a progression of events. Family violence often follows a complex cycle. Therefore, to treat family violence in a mono-dimensional manner in legislation is to treat family violence in an extremely simplistic manner, which is potentially dangerous and disempowering to victims and survivors of violence.

The Australian Greens are concerned that the introduction of the objective test as proposed will discourage victims from seeking the protection of the court where they lack the confidence that they have sufficient documentary or third party evidence to be able to substantiate their claim. This is raising the bar on the issue of family violence significantly in the absence of any evidence that there is a need to do so.

We support the chair’s recommendation that the government use the results of research by the Australian Institute of Family Studies into family violence, but we contend that the definition should remain the same as in the current act until the results of that research are known. Where the changes to the definition of ‘family violence’ are taken together with the provisions relating to costs orders for false allegations, it seems likely that this will create a situation in which there will be a significant increase in the amount of unreported family violence.

I would like to point out here that, in a paper by Michael Flood from the Australia Institute, there is a significant amount of evidence that in fact debunks the notion that mothers in particular—because the allegation is made mainly against mothers—make false allegations. There is an impressive array of research that finds that in fact that is not the case. Mothers do not use allegations of violence to prevent fathers from having access to their children, nor is there any evidence to suggest that, even if they did, that has any outcome on Family Court proceedings. I therefore support recommendation 7 of the committee’s report which is that the clause dealing with allegations of family violence and the costs associated with false allegations should be removed. As the National Council of Single Mothers and Their Children told the inquiry:

I want to particularly address the notion that raising allegations of violence and abuse gives you a tactical advantage in court processes. The reality is quite contrary to that; it is a disadvantage. Every day we hear women and grandparents being told by their lawyer not to raise domestic violence or child abuse issues because they will be seen as hostile and will risk losing residency.

I will move on to the issue of compulsory mediation. I do not want anybody to be under any illusions that we do not support mediation. We do support it. But we are extremely concerned about the use of compulsory mediation where there are cases of domestic violence. I would like to read a few quotes from women who have been involved in mediation. This is from a paper called ‘Family Violence and Family Mediation’ by Relationships Australia in Victoria. It says:

Violence and abuse does impact on women’s capacity to mediate. As one woman said, ‘The violence was like a shadow in the room so I could never talk about my wishes.’ Many went ahead with mediation to try and find resolution with a man of whom they were fearful rather than out of a desire to mediate for their own outcomes. Here are a few quotes:

‘I wasn’t emotionally strong enough.’

All women found the process of mediation extremely difficult. They felt unprepared for just how hard it was to mediate with their ex-partners.

‘Neutrality is like saying your story doesn’t exist.’

‘If I tried to talk about the violence she [the mediator] put up her hand to stop me and moved on to the next question.’

I use that quote to highlight the fact that mediation is extremely difficult for those participating in mediation in circumstances of family violence. We support initiatives to encourage families to undertake alternative dispute mediation instead of going to court. We support moves to provide greater resources to family relationship centres. We support initiatives that will improve the accreditation of centres, mediators and counsellors who deliver these services. However, we are concerned about the capacity of the sector to deal with the massive increase in demand brought about by this move to compulsory mediation.

We are also extremely concerned about the lack of skills and resources in this sector to deal with these particularly hard situations of family violence. When questioned during the committee hearing, the experts freely admitted that you need specialised training and that, at the present time, there were not enough people with this specific type of training. In the Greens and Democrats dissenting report, we highlight a list of issues that we believe need to be urgently resolved and addressed in the area of accreditation and training in family dispute resolution services. These tackle the issues of forward programming—how we are going to find sufficient people with expertise and how we are going to train those people. We need to have separate entrance rooms, for example, in situations of domestic violence. There are a range of issues that need to be dealt with if mediation is truly going to work in these difficult and complex situations.

I would also like to mention quickly the urgent need to address counselling and mediation services in rural and remote areas. It is totally unacceptable to be mediating in these difficult situations in teleconferences and over the phone. This situation will fail rural and regional services.

In conclusion, I would like to make the point that we support progress in family law in this country. We are deeply concerned about some of the proposals contained in this legislation. We made a series of recommendations on how to deal with them and I will be putting a series of amendments in committee of the whole to try to address what we believe are serious concerns with this legislation.