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

by leave—I move Australian Greens amendments (6) and (7) on sheet 4885 together:

(6)    Schedule 1, item 11, page 12 (after line 23), after subsection 60I(1), insert:

     (1A)    Despite references in this Act to genuine efforts to resolve a dispute, a family dispute resolution practitioner is authorised to certify that a dispute is not suitable for dispute resolution and no further action may then be taken in relation to the matter in accordance with this Subdivision.

(7)    Schedule 1, item 11, page 14 (after line 26), after subsection 60I(8), add:

     (8A)    A family dispute resolution practitioner must accept a sworn statement by a parent that violence or abuse has occurred as evidence of that violence or abuse.

As I outlined in my speech in the second reading debate, we have some concerns about the concept of compulsory dispute resolution and some of the requirements in the legislation that go with that. The concern, as I have outlined previously, is that it may create situations in which parents are forced into dispute resolution in inappropriate circumstances. While there are some provisions in the legislation that mean parties can go straight to court, we do not believe that those circumstances are broad enough. This will end up in circumstances in dispute resolution in which people do not feel equal. One of the partners, if they have been subjected to violence or abuse, may feel they are not in equal circumstances in the dispute. If you combine that with the concept of costs for false allegations, which we will get to later on, we believe that we are setting up circumstances in which mediation may not be successful.

That is not to say that we do not support the family relationship centres. We think that concept is a good one. We are concerned that, with the way this legislation has been formulated, most of the effort of those relationship centres will be put towards a system where the relationships have already fallen apart, whereas I understood that the concept of the family relationship centres in the first place was to try to help and foster relationships, not to deal with the end of a relationship. There is a substantial body of evidence that indicates that, unless mediation is handled extremely carefully, one of the partners—and I would hazard a guess that it would particularly be women—can feel that they have been in a situation in which they were not an equal in negotiations and their situations of violence or abuse were not acknowledged. During my speech in the second reading debate I read out quotes from people who had been involved in mediation in which they felt that they had not been able to express their concerns, that their concerns had not been heard and that it would have been better to have had a modified mediation process. Experts on domestic violence suggest that, in those circumstances, it may be better if there is a modified mediation process.

There has also been concern expressed that there will not be available sufficiently experienced counsellors and mediators to mediate in situations where there has been family abuse or domestic violence. Even to recognise it, in many instances, takes specific skills. The concern was expressed in the committee hearing that there are not enough trained, experienced mediators in the current circumstances where people are required to do compulsory mediation to meet the need that is going to be created by compulsory dispute resolution. Amendment (7) adds the words:

A family dispute resolution practitioner must accept a sworn statement by a parent that violence or abuse has occurred as evidence of that violence or abuse.

This is so we get over the concept of people having to prove that they have been subjected to violence or domestic abuse.

What we are concerned about with the combination of the dispute resolution and the false allegations is that women will not come forward with their concerns about domestic violence and abuse. We believe that, if a person provides a sworn statement, that should be evidence enough that violence or abuse has occurred and they should therefore not have to go through compulsory dispute resolution. This expands the process of enabling exemption from compulsory mediation. The other amendment that we are proposing, amendment (6), inserts:

Despite references in this Act to genuine efforts to resolve a dispute, a family dispute resolution practitioner is authorised to certify that a dispute is not suitable for dispute resolution and no further action may then be taken in relation to the matter in accordance with this subdivision.

In other words, a practitioner should be able to say that a case is not suitable for mediation. We believe that that would deal with some of the very deep concerns that we have and that have been expressed about compulsory dispute resolution.

As I said, this is not to say that the Greens do not think mediation is a good thing. We do think mediation is a good thing. We want to see the effort put in up front to deal with these problems through a much more conciliatory approach where resources are put in and people are dealing with trained, accredited mediators. Of course we want that, but we have to acknowledge that there are circumstances where that sort of mediation is not appropriate and will not work. Either partner may feel fear, and those cases are not appropriate for dispute resolution. There needs to be a mechanism—which is not contained in the current legislation—that enables them to not have to go to dispute resolution but to go through another process or to go straight to court.