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Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

Speeches in Parliament
Penny Wright 22 Nov 2011

Senator WRIGHT (South Australia) (20:44): I rise to speak in relation to the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. My Greens colleague Senator Rachel Siewert has already spoken on this bill, and I support her comments and the amendments she has proposed.

My comments on the bill, and the amendments proposed by the Greens, are informed by my experience in this area, which I think is particularly relevant. In the 1980s, I worked as a solicitor and some of my clients were women experiencing what was called domestic violence in those days but is now called family violence. More recently, I worked as a family dispute resolution practitioner or mediator with Relationships Australia until 2010. I will come back to those experiences in a minute. The government's stated purpose of the bill is to:

… amend the Family Law Act 1975 … to provide better protection for children and families at risk of violence and abuse.

Schedule 1 of the bill primarily amends part VII, dealing with children, of the Family Law Act 1975 to enable the courts and the family law system to respond more effectively to parenting cases involving violence or allegations of violence. Schedule 2 contains more technical and procedural amendments to the Family Law Act and Bankruptcy Act 1966. This proposed legislation has been prompted by research findings from credible Australian institutions and academics, including the Australian Institute of Family Studies in their Evaluation of the 2006 family law reforms, Professor Richard Chisholm in his Family courts violence review and the Family Law Council in its Improving responses to family violence in the family law system: an advice on the intersection of family violence and family law issues. In addition, the October 2010 report from the Australian Law Reform Commission and the New South Wales Law Reform Commission, Family violence—a national legal response, has informed the discussion about the current state of the law.

Much of this research has been focused on assessing the consequences of the 2006 amendments to the Family Law Act, of which we have heard something tonight, to promote the equal sharing of time by parents after separation by creating a presumption of equal shared parental responsibility. Over time, through anecdotal evidence and then as a result of research findings, it has become clear that there are serious concerns about the effects of the 2006 changes to the law.

During my time as a mediator, I worked with many separating couples. I was drawn to this work because it offers an alternative to the conflictual and adversarial process that sadly often accompanies family break-ups. By helping parents to focus on the most important aspect of their life together—their kids—they can be assisted to move beyond their hurt and discord to make strong and powerful decisions which benefit their children and, as a consequence, themselves. I have a strong belief in the value to children of having strong, loving relationships with both parents where those relationships are respectful, responsible and safe. My brother was the primary caregiver for his three daughters, nurturing them through their teenage years and into their secure, happy, adult years. I have the utmost admiration for the safe, loving environment in which he raised his daughters and the great job that most parents—fathers and mothers—do in raising their children. But the fundamental requirement for safety and protection of children from harm must not be sacrificed for some notion of a parent's unassailable right to have a relationship with a child if the risks associated with that relationship are unacceptably high.

Unfortunately, in the course of my mediation work, it became increasingly apparent to me that what may have been well-intentioned amendments to encourage parents to share the parenting of their children after separation have had some unintended and extremely harmful consequences. It is some of those consequences which this legislation is aimed at addressing. It became obvious that the presumption of equal shared parental responsibility for children had become a de facto presumption of equal time and was contributing to a rigid and demanding expectation on the part of parents which undermined the possibility of reaching a flexible agreement that responded to the unique needs of a particular child and family. Parents began to come to the mediation sessions with a fixed requirement based on the misconception that equal and shared parental responsibility meant equal parental time. Their rights to time with their child were uppermost in their mind—not the quality of the time or the needs of the child. They were fixated on their rights as against the rights of the other parent and the interests of the child were lost.

Although I would try to encourage parents to focus on their child as an individual with particular and unique needs which needed to be factored into the arrangements they were making, there was often nothing I could do to shake the attitude. Quite often my attempts to explain the difference between shared responsibility and shared time would elicit incredulity or accusations that I was biased against one parent or the other. In one particular case, I was abused by an angry parent who refused to accept that it may not be in the best interests of his four-month-old daughter, who was still breastfeeding, to spend overnights away from her mother at that stage. He accused me of discriminating against him because he was not a woman—absolutely unwilling to consider the nutritional or emotional needs of his young child at that time because he was so fixated on his right to shared responsibility as a parent.

Because some parents were demanding the right to 50 per cent of a child's time, it was difficult to get them to consider such things as the age of the child, the child's needs and circumstances, the practicality of arrangements which might mean travelling long distances to effect the changeover or the overall best interests of the child. I witnessed this across the whole spectrum of ages, from very young children right through to teenagers of 15 or 16 who had social lives and commitments of their own and were not very keen to be divided down the middle in order to meet their parents' sense of entitlement.

Due to the pervasive view that equal shared parental responsibility means equal time, the default position for negotiating became a fifty-fifty shared care arrangement. Because of this, parents became less willing to negotiate any alternative that might take into account the child's needs based on their schooling, their interests or their particular personality. Where a child is quite robust, moving from one home to another on a regular basis—weekly, every three or four days or, in some notable cases, every two days—may not be difficult for them. But another child might have a personality which is not suited to constant change. A perceptive parent would see that their child would benefit from having a single identifiable home base while spending quality time with the other parent at that parent's home. But a parent fixated on strictly equal parenting time would be unable to recognise that need. I am strongly of the view—which is supported by evidence before the Senate inquiry—that the presumption of equal shared parental responsibility in section 61DA of the Family Law Act has detrimental outcomes for children. It skews the consideration of the court as to what the best interests of the child are and contributes to a prevailing misconception that parents are entitled to equal parenting time with their children irrespective of the child or the circumstances. The presumption of equal shared parental responsibility is not conducive to the best interests of a child and should be repealed in accordance with the Greens amendments to be introduced by Senator Siewert.

Let me turn now to the vexed issue of family violence, which is an aspect of life for many Australian children and adults—and this bill reflects that reality. Ensuring their safety, as much as possible, must be a priority. In its study, the Australian Institute of Family Studies concluded that, while the 2006 reforms had a positive impact in some areas, there was clear evidence that the family law system as a whole had a way to go in achieving an effective response to families presenting with family violence and child abuse. Alarmingly, it noted that, while children in shared care represent a minority overall, and while the majority of families with shared care appear to be doing well, there is evidence that these arrangements are sometimes made even in circumstances where parents have safety concerns, with adverse consequences for the wellbeing of children. Alarmingly, the evaluation found that families where violence had occurred were no less likely to have shared care-time arrangements than those where violence had not occurred. Similarly, families where safety concerns were reported were no less likely to have shared care-time arrangements than families without safety concerns.

Evidence before the inquiry, including studies from the Australian Institute of Family Studies, Professor Richard Chisholm and the Family Law Council, indicates that provisions in the Family Law Act are a disincentive to parents to raise safety concerns for fear of falling foul of the court. These include the so-called 'friendly parent' provisions and the ability of the court to order costs for false allegations against another parent.

It is not hard to understand why this would occur, as in each case the stakes are high for a parent who is not believed. In relation to the 'friendly parent' provisions, a court is required to take into account the willingness and extent to which one parent has facilitated the child having a relationship with the other parent when determining the best interests of the child and, ultimately, orders dealing with parenting arrangements and parental responsibility. A finding that a parent has not facilitated the relationship with the other parent may result—and has resulted—in a court deciding to grant more, or exclusive, time with the other parent even though there may be good reasons to explain the failure to facilitate, such as a fear of violence, abuse or risk to the child. Professor Chisholm's review concluded:

On the material available, it seems likely that the friendly parent provision, s 60CC(3)(c), while it might have had a beneficial effect in many situations, has had the undesirable consequence in some cases of discouraging some parents affected by violence from disclosing that violence to the family court.

In my mediation work I witnessed coercive, threatening and sometimes violent relationships where there was pressure by one parent on the other to agree to fifty-fifty shared care because it was seen as a default position, a normative arrangement, irrespective of the effect on the child. I also saw parents who were subject to violence or intimidation or were concerned about the treatment of their children by the other parent but who were reluctant to discuss these things or to withstand the pressures of the other parent to reach agreements about parenting that they felt were not in the best interests of their children. This was because they were fearful of being labelled an 'unfriendly' parent, due to the serious consequences such a label would attract. So they made a choice, understandable in the circumstances, to stay silent or risk losing contact with their child.

This bill will amend the 'friendly parent' provision by requiring a court to consider why a parent may not have been willing or able to facilitate the child's relationship with the other parent, and those reasons may well encompass violence or abuse. If the 'friendly parent' provision is to remain a factor to be taken into account by a court, and this bill does not repeal the provision altogether, it is imperative that the court be required to consider the context for a parent's failure to facilitate the child's relationship with the other parent. This will provide a fuller picture of the situation for the court and encourage a parent to disclose violence or abuse.

I also support the bill's removal of the mandatory penalty of $10,000 to be imposed by the court for false allegations of family violence or abuse. The evidence before the inquiry was that it had been little used but still caused fear among those who had experienced violence or abuse but were terrified that they would not be able to prove it, thus silencing them. Many of the submissions to the inquiry supported the repeal of the relevant section because it had the effect of discouraging the disclosure of violence and abuse. That is not good for the person who has been subject to the violence and it is not good for the children who are part of that relationship.

In conclusion, our family law system must make the safety of children a priority. This must be the predominant determinant of their best interests. There is a compelling case for reform of the existing situation. This bill has been the subject of a thorough inquiry by the Senate Legal and Constitutional Affairs Legislation Committee. Submissions were received from a diverse range of individuals and organisations. Of these, 73 per cent were in favour of the proposed amendments to the Family Law Act contained in the bill. More recent research from the Benevolent Society based on a survey of 1,071 respondents revealed that 93 per cent of people agreed that safety and security are the most important issues for a child when a relationship between parents breaks down, and between 86 and 93 per cent of the respondents agreed that a child's right to safety is more important than a parent's right to equal time.

I commend the government for the reforms that are included in this bill. It has heeded the calls of many for changes to a system that was clearly not adequately protecting some children and adults from family violence and abuse. However, as I have discussed, I believe that these measures have not gone far enough in responding to the evidence of what is needed to protect children and adults from family violence. For this reason, I urge the Senate to support the further amendments that will be moved by the Australian Greens.

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