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

Senator SIEWERT (Western AustraliaAustralian Greens Whip)

Senator SIEWERT (Western AustraliaAustralian Greens Whip) (19:50): The Greens support the intent of the Family Law Legislation Amendment (Family Violence and Other Measures) Bill. In 2006, when the Howard Government brought in their so called reforms to the Family Law Act, the Australian Greens expressed our strong concern and opposition to many of the amendments. In fact, we moved many of our own to address those issues. We were particularly concerned about the reforms that affected the best interests of the child, the presumption of equal shared parental responsibility and also the definition of domestic violence.

Specifically, we were concerned with the aspects of the bill that sought to privilege parents' rights over parental responsibilities and children's rights. The notion of equal shared parenting presented in this bill, we believe, reflected a commodification of children that failed to address the best interests of the child based on individual need and circumstances. We were also concerned that the definition of family violence adopted in the bill and then, of course, in the act failed to address the complexity and multidimensionality of this issue and, in so doing, did not provide adequately for family members at risk of family violence, particularly women and children. We were also concerned about the implications of some of the other amendments, specifically the cost orders for false allegations. I outlined these concerns at the time quite extensively, but I would particularly like to remind the chamber of a specific comment I made expressing concern that:
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 were concerned at the time 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.

I canvassed those issues extensively at the time. We are not surprised that, since then, these so-called reforms have come under harsh criticism from lawyers, advocates and parents for placing the rights of the parents over the best interests of the child. We believe that the reforms have put many children and their families in dangerous situations. That is why we welcome the government's efforts to address these problems and undo someunfortunately, only someof the mistakes made by the Howard government. Later, I will go into our concerns that this bill does not go far enough.

We support the prioritisation of the safety of children in family law proceedings and the changes to the definitions of family violence and abuse. Importantly, as we have advocated for over five years, the bill places the best interests of the child as the primary consideration in parenting matters. The definition of abuse has been expanded to include psychological harm, neglect and, notably, exposure to family violence, and a definition of family violence has been placed in the act. The friendly parent and mandatory costs orders provisions, both of which have raised great concern as a major disincentive for reporting family violence, are also being repealed. These changes, and many others contained within the bill, represent very important steps forward in protecting the best interests of children and victims of family violence. The Greens support these changes; however, we believe they do not go far enough.

In our dissenting report of the inquiry by the Legal and Constitutional Affairs Legislation Committee into the 2006 amendments, the Greens recommended that the definition of family violence not be amended and considered that the proposed tests were not adequate. We further recommended:
Upon completion of the Australian Institute of Family Studies review; the Government should work closely with State and Territory Governments to formulate a comprehensive, effective and uniform definition of family violence.

I am therefore very pleased that the government has revised the flawed approach of the 2006 changes. I commend this bill for recognising that exposure to family violence is a form of abuse. It is an important step in improving the protection of children and prioritising their safety. However, the Australian Greens believe that exposure should be included in the definitions of family violence and of abuse and that the definition of family violence should be clarified to ensure that the parent victim is not held responsible for the exposure. The Australian Law Reform Commission notes:

There has been a considerable amount of research documenting the fact that exposure of children to family violence causes long term emotional, psychological, physical and behavioural issues.
It urged the Legal and Constitutional Affairs Legislation Committee inquiry into this bill to include exposure in the definition of family violence and abuse, as certain behaviour can constitute both. It must also be made clear that victims of violence must not be held responsible for not being able to remove children from the violence. This recommendation is supported by the Australian Law Reform Commission and Women's Legal Services Australia. We seek assurances from the government that it considers this to be implicit in the changes it is making.

While we are pleased that the government is addressing the best interests of the child, we were concerned that, because some of the bill's other provisions were not being amended, the way in which the changes had been drafted presented inconsistencies about whether the best interests of the child or maintaining a meaningful relationship with parents prevails. This issue was raised in the committee inquiry by a number of witnesses and in a number of submissions. So we are pleased that the government is seeking to amend the bill to ensure that this is clear. The Australian Greens were concerned that the changes do not go far enough and that the changes do not go to the issues of perceived equal shared parenting and equal shared parenting responsibility. A large number of submissions, including those of professors Rhoades and Dewar and of the WLSA, recommended removing the two tiers of factors present in section 60CC and creating a single list, of which child safety would be the first consideration and be given priority. The government amendments address that. We would have liked to see them go a little bit further.

The Australian Greens support the fact the government has recognised that it is absolutely essential that the best interests of the child are given primary consideration. That is why we find it very concerning that the government took a step back from the amendments that, as I understand it, they were originally considering around addressing equal shared parental responsibility, which the 2006 changes introduced into the act. We believe that the government has not gone far enough in addressing this issue and that having that in place still puts at risk the best interests of the child.
We have consistently opposed the equal shared parental responsibility requirement since its introduction in 2006. As we argued at the time, it creates a de facto presumption of equal time. As I said at the time:

While 'equal shared parental responsibility' and 'equal time' are not one and the same, they are inter-related in a way that creates an unacceptable formula in the bill I said 'bill', but it is now obviously in the act.

The concept has moved from a 'presumption of equal time' to a presumption of 'equal shared parental responsibility'.
I acknowledge that. I went on:

However, we are concerned that with a starting point of a child spending 'equal time' or 'substantial and significant time' with each parent this will be a de facto presumption of equal time.

The operation of a presumption such as this, de facto or otherwise, is likely to lead to an inappropriate and harmful focus in determining what is best for children
Evidence to the committee inquiry clearly pointed out that that is in fact what happens. Starting from a presumption of equal time, regardless of what is said about it not being that, that is in fact what happens.

Subsections 61DA(1) and (2) of the act required the court to presume that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent has engaged in abuse or family violence. There are numerous problems with this provision. Professor Chisholm, an expert in this area of law, who presented a submission in person at the inquiry, has explained that aspects of the legislation, including ESPR, are 'unnecessarily complex and confusing, making it hard for people to focus on the best interest of children'. While the act does not create a presumption of favouring equal time, it can easily be interpreted that way, as it is the only outcome the act specifically mentions. Professor Chisholm notes:

On this, as on other matters, I believe that the Act is subtly incoherent, sending out inconsistent messages. Not surprisingly, the AIFS Evaluation and other reports reveal that it has caused considerable misunderstanding.

As I pointed out, that was raised a number of times.

According to evidence given at the inquiry, the presumption of equal shared care is meant to be rebutted by family violence, but it is not given due weight, especially at an interim stage where the family violence allegations are unlikely to be considered or tested. These concerns are supported by the AIFS evaluation which found that, of parents who had set up arrangements after the 2006 reforms, those with safety concerns were no less likely than other parents to have shared care-time arrangements.

It is self-evident that failure to adequately consider family violence can lead to negative outcomes. Data provided as part of the inquiry indicates that the reforms have been successful in producing an increase in shared care arrangements since the legislation came into force. At the same time, however, the research indicates that a significant number of these arrangements are characterised by intense parental conflict and that shared care of children is a key variable affecting poor emotional outcomes for children. Further evidence from the Family Law Council stated that there is no clear evidence on the benefit of shared parenting arrangements. They said:

The recent research that has been released, including reports by the Australian Institute of Family Studies, Cashmore and others and McIntosh and others, indicates that shared parenting arrangements of themselves offer no independent benefit to children compared with other types of arrangements where children see their non-resident parent regularly and there are no concerns about safety, violence and conflict.

It became increasingly evident throughout the hearing process that a flexible approach is needed, tailored to the circumstances of each family, not a one-size-fits-all requirement of shared responsibility. Parenting arrangements should always be governed by the best interests of the child and should be determined on a case-by-case basis. Evidence indicates that the presumption of ESPR does not necessarily equal the best interests of the child. We believe that these provisions should be repealed. In fact, I have got amendments to do that, because that would complement the other amendments that the government has made. This is not to say that we do not think shared parenting arrangements work. We are not saying that. We are saying you need to work those out in the best interests of the child, and there is still a part of this act that is inconsistent with the changes that the government wishes to make.

Finally, the Australian Greens draw attention to a recommendation made by the Women's Legal Service Australia when we were holding this inquiry into this bill. Over 50 per cent of parenting matters in the family law courts involve allegations of child abuse and/or family violence. As such, the WLSA recommends implementing a risk management framework to identify and explore issues of family violence and child abuse at the initial stages of application. Such early risk assessment 'would contribute to ensuring that the matter proceeds through the most appropriate court division and ensuring less adversarial and earlier resolution of issues' as well as assisting 'agencies to ensure that appropriate referrals can be made and safety planning undertaken for women and their children when necessary'.

The Australian Greens recognise that implementing a risk assessment framework would present a significant and broad reform of the family law system and related government policy. However, we believe that this suggestion is worthy of support and we recommend that it be explored further in any other amendments that are made to the Family Law Act. We will be supporting this law reform.

We believe they are significant reforms. As I articulated earlier, we believe that they address significant flaws in the Family Law Act. They do not go far enough. I was concerned, and am still concerned, that the government did not proceed with as full and extensive a set of amendments as we had at first anticipated they would. Having said that, these amendments will make a real difference to the safety of families, and the safety of children in particular, and put the best interests of the child at the centre of things rather than sublimating the interests of the child to the de facto presumption of equal shared care, which actually then prioritises a parent's rights above the best interest of the child.

This redresses those flawed amendments. Having said that, we will be supporting this legislation. However, we will be moving amendments specifically to improve the definition of family violence and also, as I said, to remove the shared parental responsibility provisions that are currently in the Family Law Act.

Executive Secretary - Shared Parenting Council of Australia
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