Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to this | Hansard source

I am very pleased to contribute to this debate on the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, such as my opportunity will be, given that the debate is to be truncated by the guillotine. Like Senator Fisher, I was a participant in the inquiry by the Senate Legal and Constitutional Affairs Legislation Committee into this legislation. I think that the legislation represents a very significant piece of change to the law. Like Senator Fisher I hesitate to call it reform, although I have to acknowledge that some parts of the legislation are valuable, do improve the state of the law and do make it easy to use for those people who require access to the Family Court. I echo the concerns of colleagues on this side of the chamber in this debate: significant changes in the law will be enacted by the Senate tonight in a shortened debate. We will not have time to consider amendments put forward by the Greens and by the coalition. We will not have key opportunities to consider issues in the legislation which are critical and which have been extensively debated in the public arena and in specialist circles and which were subject to intense debate before the Legal and Constitutional Affairs Committee or to consider issues around which there is a rich vein that the Senate ought to be explore. We will not deal with them tonight except by a simple vote on the floor of the Senate.

In her contribution, Senator Wright advocated for her amendments. Maybe she has put forward, on behalf of the Greens, some wonderful amendments to this legislation. I am afraid we will not get the chance to find out, because Senator Wright and her colleagues in the Greens have joined with the Labor Party to ensure that there will not be a committee stage on this bill. We will not have a chance to debate the amendments that the Greens are putting forward, wonderful though they might be.

I ask senators to consider what we are dealing with tonight. These amendments, in effect, go to the framework of family law in this country. The Family Law Act 1975 was a seismic change in the landscape with respect to personal relationships in this country. It was very significant legislation. We can all have different views about this, but it was undoubtedly an iconic piece of law reform. Tonight, we are dealing with that legacy. We are dealing with that great change in the law and the consequences and the developments that we have dealt with in the succeeding 35 or so years. But we are dealing with it tonight in an entirely unsatisfactory way. We are going to rush this through the Senate. We have important amendments to consider, but we are going to rush this through the Senate because of the deal that has been done between the Australian Labor Party and the Australian Greens.

I wonder what the ghosts of people like Lionel Murphy, Lionel Bowen, Bob Ellicott and others who were involved with those great debates would think, as they look down on this debate, about the way the Senate is dealing with that legacy legislation and the changes we are making to it, supposedly to bring it into contemporary use and to address the needs of 21st-century Australia. What would they make of it if they saw this debate going on? I do not think they would think very much of it, but that is the way it is being handled tonight.

I will address some of the issues in this legislation and point out what I believe would be some of the advantages were the Senate to adopt the amendments put forward by the coalition. I want to affirm, though, that the coalition very much values the essential elements of the legislation as it now stands and believes that our amendments underpin those important values—values that were described in the 2006 amendments moved by the then Attorney-General Philip Ruddock as the shared parenting reforms. We stand by a central feature of that legislation, which was that the paramount consideration of the courts was the best interests of the child when it came to issues relating to the care and maintenance of that child. We stand by the presumption, displaced only on substantial and exceptional grounds—for example, on the basis of what is in the best interests of the child—that there should be equal shared parental responsibility in the raising of a child and in the direction made by parents in the course of a child's life. We stand by the recognition in the law—again, I emphasise, subject to a child not being exposed to harm or having its interests otherwise detracted from—of the benefit to a child of having a meaningful relationship with both of its parents. Those principles are in the legislation. They have been there for some time. The level of emphasis placed on those principles has varied from time to time, but those values are core to the way that our Family Law Act works today, and we believe on the coalition side that they ought to be retained and not detracted from.

It is fair to say that the 2006 reforms did require the court to take into account a parent's willingness to abide by those principles dealing with the behaviour of a parent and the parent's attitude towards another party to the marriage or relationship—again, subject to the child's best interests. I heard a suggestion in the course of the debate by Senator Crossin that, for example, in some way the reforms of 2006 weakened or watered down the central focus on the court making decisions that were subject to the child's best interests. That, of course, is completely untrue. The paramount consideration before the court remains what is in the child's best interests. The extent to which other considerations can apply subject to that overarching qualification is what, in a sense, the 2006 reforms and this legislation debate.

Much of the bill enacts appropriate, balanced refinements of the law, but it is the view of the coalition that some of the amendments do undermine the shared parenting principles. Accordingly, the coalition has moved amendments to protect those principles—principles which we were responsible for in the first place. I want to touch on a few of those in a few minutes given I do not have an opportunity to put these issues in the course of a committee stage debate. The issue of a friendly parent provision reflects the fact that coalition senators in the course of the inquiry believed that the bill, to some extent, undermined the principles of shared parenting by repealing those provisions in existing paragraphs 60CC(3)(c) and 60CC(4)(b), which take account of a party's willingness to facilitate another party's involvement in the child's welfare. It is hard to represent those changes as anything other than an attack on that key principle of shared parenting. We were not persuaded that parties to proceedings are not disclosing concerns about family violence or child abuse for fear of being found to be an unfriendly parent. That was not the substantial weight of the evidence before the committee, in our opinion. We consider that the provisions should be preserved as they stand now, more or less, in order to ensure that that important principle is not detracted from.

On the question of a new definition of family violence, the coalition senators who took part in the inquiry certainly endorsed the objective of giving greater recognition to the breadth of behaviours comprising family violence in our community. However, we did not consider in this inquiry that the net should be cast so wide as to capture all human behaviours, which is what the proposed definition effectively would do. Professor Richard Chisholm, a former judge of the Family Court, gave very strong evidence that there were problems with proposed new subsection 4AB(1). I note that Senator Wright quoted approvingly of the evidence given by Professor Chisholm. I hope she listened, therefore, to the suggestion that we perhaps should consider a different approach towards this particular provision than the one the government is proposing to the Senate. Professor Chisholm said that the new subsection was overinclusive and captured any behaviour that caused a family member to be fearful. I think he gave the example of a family member who rushed into a room to say: 'Fire! Fire! Get out of the house now.' That kind of behaviour would be captured as being behaviour that would cause a member of the family to be fearful, even though it obviously is not appropriate to characterise that as something which could be called family violence. Coalition senators believe that such a provision undermines the objective of the bill as it makes no allowance for the intent of the party giving rise to this 'fear'. Professor Chisholm proposed an alternative provision, which I would commend to the Senate. We will not have a chance to debate those sorts of provisions because the debate has been truncated.

Other senators, including Senator Mason, have made reference to the absolutely preposterous proposal to remove section 117AB of the legislation that allows the Family Court to make an order for costs—a rare thing in the Family Court—where a party has deliberately come forward and knowingly made false allegations of abuse and family violence in the course of Family Court proceedings. We are not talking about allegations which are made which cannot be substantiated on the balance of probabilities. We are not talking about claims that are contested before the court which the court considers in all the circumstances to be made out or not to be made out. We are talking about a finding by the court that a party to the proceedings has deliberately set out to mislead the court by making false allegations of abuse or family violence. The court has the power under the present framework of the law to make an order for costs against the party making false allegations. It is preposterous that this bill proposes to take that power away from the Family Court on the basis that some people have misunderstood what that provision means or that some people have supposedly failed to make allegations that there had been violence in a relationship for fear that they might be ordered to pay costs.

Senator Wright said that there was evidence that this was a widespread problem. With great respect, that was not the evidence that was presented to the committee. The evidence was that it was rumoured to be an issue. Nobody could actually come forward to the committee and tell us that they actually had a case where it had occurred. No-one provided that evidence and the Family Court representatives themselves who came before the committee said that they did not have any evidence of such practices going on. On that basis, the government proposes to remove the capacity of the court to punish a party, in effect—not through an order to award a child to another party, not to take away from the best interests of the child, obviously—and to send the signal that deliberately false allegations should carry some consequence, should resonate through an order for costs. To suggest that that should be removed from the legislation is just outrageous. I think the government's approach to this issue is completely misconceived.

The coalition is also concerned about the timing of the commencement of the legislation. The Family Court itself expressed a preference for the substantive provisions of the bill to apply only to those applications filed after the commencement date of this legislation. Has the government done that? No, it has not. It is applying the provisions to earlier litigation, with the potential effect that parties will have to go back to the court and amend their pleadings before the court because the law changed after the proceedings had commenced. I would have thought that was quite an unsatisfactory state of affairs, but that is what the legislation the government is putting forward does. We do not have a chance to debate this issue properly, because again this amendment cannot be considered in the course of tonight's debate.