Brett Mason (Queensland, Liberal Party, Shadow Minister for Universities and Research) Share this | Hansard source

No matter what position and what perspective one brings to discussion of family law, one thing we all agree on is that this is an incredibly difficult area of law and of public policy. Family law matters tend to be emotionally charged and too often of course involve intractable disputes, often dysfunctional parental or family dynamics, and tragically, as Senator Crossin and other senators have noted, sometimes even issues of abuse and domestic violence as well. It is often remarked, unfortunately, that lawyers practising in this area experience the highest rate of mental health problems: addiction, depression, marital problems and even suicide. Quite clearly, this is an area of law that takes its toll not only on the people subject to the law but on the very profession itself.

The legislators, the members of parliament and the senators concerned with family law in many ways have both the best and the worst of involvement. It is the best because our professional involvement often amounts to no more than a 20-minute debate contribution followed perhaps by a committee and then by a vote. But the worst because the laws we thus enact can make the difference between the hell or the mere purgatory for tens of thousands, young and old, brought before the family law system. The role of family law should ideally be to facilitate the smoothest resolution of the matters in dispute in what is, I think all senators would agree, typically an emotionally charged atmosphere, balancing competing interests in a way that is fair, just and equitable. In the end, the coalition is forced to conclude that this bill will take us further away from achieving this primary objective.

It is impossible to understand this bill without first understanding the context of the 2006 family law reforms. These legislative reforms followed literally years and years and years of consultations, which culminated in the landmark report Every picture tells a story by the House of Representatives Standing Committee on Family and Community Affairs in December 2003. That inquiry into child custody arrangements in the event of family separation undertook, I think it is fair to say, exhaustive public hearings. Most notably, the resulting report was—I should remind the Senate of this—bipartisan and the result was also unanimous. Over the next three years the report of the House of Representatives committee gave impetus to reforms that at their heart had the concept of shared parental responsibility. This involved recognition and protection of the right of the child to a mother and a father, as well as grandparents, in their lives. It also involved recognition that despite separation of parents shared care was an important ideal to strive for, particularly for children.

The 2006 reforms recognised that shared care was not always possible and, indeed, it was not always appropriate or responsible. As such it was not, and was never, the only consideration to be weighed in family law disputes. An extensive range of factors the courts must have regard to is set out in section 60CC of the act.

The bill before the Senate this evening at its core is a rollback of the 2006 shared care reforms. To the mind of the coalition, it reflects a lack of understanding as to how to truly put children and their best interests at the centre of family law proceedings. It shows no genuine understanding of how that system works in practice and of the many difficulties it produces. I believe that in the legislative struggle to make family law dispute resolution less like hell and more like purgatory, or perhaps hell with hope as it is often described, this bill tips the scales again back towards hell.

I worry that in time it will stand as yet another example of Labor's inability to implement anything competently. I am no expert on family law and I do not claim to be. But I am more than aware of heartbreaking stories of many men and many women and how their lives have been impacted and sometimes devastated when they come into contact with family law matters or separation from their children. I know all my coalition colleagues would agree that while we support the ostensible aim of this bill we cannot support the bill as it is currently drafted.

The coalition—and I share this with Senator Crossin and remarks made by other senators—believes strongly in protecting both children and adults from violence and abuse. The government is right to point that out. There is absolutely no excuse for domestic violence or sexual abuse of any kind against women, or children, or in some instances, against men. Of course, it is absolutely crucial that children are kept safe from abuse of all kinds: physical, emotional, sexual and so on. That is true.

But also it is critical that children are kept safe from the effects of false allegations of sexual abuse by one parent against another in family law proceedings. Let the Senate not forget that. Children need to be protected against both of these evils. Both can have devastating effects on families but, most importantly, long-term detrimental and profound effects on the kids involved, both socially and emotionally. The coalition's serious reservations and, indeed, our misgivings, about the key defects in this bill are reflected in the additional comments of coalition senators in the Senate committee's report on this bill, and I note Senator Humphries being here this evening.

Overall, the fundamental problem with this bill lies in the unintended, the unfair and potentially even the perverse consequences that will arise from the bill's application and from its interpretation. These consequences, to the mind of the coalition, threaten to undo any good otherwise achieved by the bill. Let me touch on a few of the failings of this bill as they are reflected in the opposition's amendments, to be moved later this evening in committee.

Firstly, the absurdly broadened definition of family violence diminishes and trivialises the very serious issue of violence which a small minority of men and some women perpetrate. The coalition is not opposed to a sensible broadening of the legislative definition of family violence, but the proposed new definition embraces such a breadth of behaviour as to make the concept of violence as commonly understood in the community almost meaningless. Combined with the removal of any objective criteria, thereby imposing an entirely subjective test of what constitutes family violence, this amendment can only lead to much heartache and much litigation.

Secondly, the repeal of the so-called 'friendly parent' provision makes little sense. That is, the removal of the current positive obligation upon separating parents to facilitate a child's relationship with the other parent, to have a positive duty to support that ongoing relationship. It is claimed this current provision inhibits women from disclosing violence, but where is the evidence of this other than the purely anecdotal? It is a very serious claim that the government has not really substantiated to underpin this bill.

Thirdly, by repealing section 117AB, the bill also deletes the only penalty that applies to those who make—I want to emphasise this—deliberately false allegations of child abuse or family violence in proceedings. After the amended bill takes effect, what will be the sanction for someone who deliberately makes false allegations of child abuse? There will be none. Making an allegation that turns out to be unsubstantiated is one thing, as Senator Humphries knows. This is not simply an allegation that cannot be proven but one that is known to be false at the time it is made. What is the sanction?