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

Senator CROSSIN (Northern Territory)

Senator CROSSIN (Northern Territory) (20:07): I rise this evening to speak on the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, a bill which I believe is long overdue. This bill is important, as it seeks to address serious issues with our family law system. The system as it currently stands does not adequately protect children from family violence.

The evaluation of the 2006 family law reforms by the Australian Institute of Family Studies found that two-thirds of separated mothers and over half of separated fathers reported experiencing abuse, either emotional or physical, by the other parentI want to emphasise that. The institute also found that one in five of the separated parents who were surveyed reported safety concerns associated with ongoing contact with their child's other parent. Disturbingly, the evaluation also found that shared parenting responsibility was the outcome for 75 per cent of children where there were allegations of family violence and child abuse.

A report by the Family Law Council highlights data that victims of family violence receive more psychiatric treatment and have an increased incidence of attempted suicide and alcohol abuse than the general population. Violence is also a significant cause of homelessness. So research and various reports by leading social scientists and academics have consistently shown that exposure to family violence and child abuse leads to poor developmental outcomes for children.

It is truly concerning that the family law system in this country is failing our children. Children have a fundamental right to live happy and healthy lives in a safe environment. The family law system must prioritise the safety of children to ensure that their best interests are met. The bill before the Senate this evening goes a long way to addressing the current failings in our family law system. The purpose of this bill is to amend the Family Law Act 1975 to better protect children and families at risk of violence and abuse, while also making technical amendments to provide efficiencies for the courts and litigants.

The exposure draft of this legislation was released for public comment by the Attorney-General's Department as far back as November 2010, so it has been out there for at least a year. In that consultation period 400 submissions were received, with 73 per cent supporting the amendments and 10 per cent bravely offering information about people's own experiences with family law.

As the explanatory memorandum states, the key provisions of the bill aim to prioritise the safety of children in parenting matters; to change the definitions of 'abuse' and 'family violence' to better capture harmful behaviour; to strengthen the obligations of advisers by requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children; to ensure that courts have better access to evidence of abuse and family violence by improving reporting requirements; and to make it easier for state and territory child protection authorities to participate in family law proceedings where appropriate.

I want to make it clear this evening that the government continues to support shared care and a child's right to a meaningful relationship with both parents. What I do not support is for shared care to take precedence over the safety and wellbeing of a child. That is what this bill clarifies: that the safety of the child is of utmost, paramount, importance. Importantly, the bill changes the definitions of family violence and abuse to better define harmful behaviour such as emotional, psychological and economic abuse and stalking. The definition clearly states examples of behaviour which may constitute family violence as including intentionally damaging or destroying property, intentionally causing death or injury to an animal, unreasonably denying a family member the financial autonomy that he or she would otherwise have had, and preventing a family member from making or keeping connections with his or her family, friends or culture.

Another important change clarifies that exposing a child to family violence is abuse in relation to the child. As victims know all too well, family violence takes many forms, not only physical, and can affect any member of the family regardless of gender.

The Senate Legal and Constitutional Affairs Legislation Committee, which I chair, held a public inquiry into the bill that is before us today. The inquiry was referred to the committee on 25 March this year and we tabled our report on 22 August. We received 275 submissions, which I might say is quite a large number.

They came from a range of organisations, government departments and individuals and the majority supported the bill's objectives. In its final report the committee made eight recommendations and I am pleased to say today that the government is adopting six of those eight, I think.

The government has accepted the following recommendations made by the committee. The first recommendation that our committee put forward, which has been adopted, is that we clarify the provision that requires the court to give greater weight to the protection of children from harm when determining what is in the child's best interests. Our third recommendation, which proposes a new paragraph to better define what a court can consider in relation to family violence orders as part of considering the child's best interests, will also be taken into consideration by this government in moving further amendments.

Recommendations 5 and 7 propose to have schedule 1 commence on the day after the end of the period of three months beginning on the day of royal assent. This will provide certainty around the commencement date of the provisions of the bill and the matters to which the amendments apply. This was a matter of some discussion amongst all members of the committee. As we all well know, when new legislation like this comes into place, there are always matters before the court that may or may not get caught up in the new provisions. That required some discussion and careful determination by the committee as to what we should do with regard to the recommendations in our report.

The sixth recommendation does not require amendments to the bill, but the committee proposed that the Attorney-General's Department, along with the family law courts and relevant organisations, institute an education campaign to ensure the public as well as those involved in the family law system are well aware of these new changes and how they may affect them.

We also recommended that the bill be amended to require that the Family Court give consideration to the reasons that one parent might not have facilitated a relationship with the other parent, and to remove reference to the word 'serious' in the new definition of abuse. With regard to the latter, organisations were concerned that only serious abuse is defined as child abuse, whereas it could be argued that any abuse is in fact serious. The Attorney-General's Department responded to those concerns by saying serious was included to avoid over-reporting, that authorities may be hindered from identifying and dealing with serious cases of harm due to excessive reporting. This government has also stated it does not accept those two recommendations as 'they would likely have unintended consequences and decrease protections for children from violence and abuse'.

As Chair of the Senate Legal and Constitutional Affairs Committee, I want to thank everyone who participated in the inquiry, brought forward submissions and appeared before us to give evidence, particularly those who attended the hearing.

There have been many reports into the family law system in Australia: the Australian Institute of Family Studies, the Australian Law Reform Commission, the New South Wales Law Reform Commission, the Family Law Council and of course the work that has been done by Hon. Professor Richard Chisholm AM, to name a few, who have provided research and analysis into the failings of the current family law system. Their research has a similar conclusion: that more needs to be done to protect and support families within the system who have experienced or are at risk of abuse or violence, particularly children.

The bill before us today takes crucial steps towards ensuring that the safety of children is paramount, particularly during the difficult time of family separation. Also, the bill and the amendments that have been picked up by the government reinforces the valuable work that Senate committees do in this place in terms of looking at legislation and providing a means by which organisations and experts can have input into and propose sensible changes to legislation before us. Governments are willing to listen and pick up those amendments and adopt them.

The bill retains the substance of the shared parenting laws that were introduced in 2006and I cannot emphasise that enough. The bill continues to promote a child's right to a meaningful relationship with both parents, but with one very important condition: that the best interests of the child must and should always come first. The government has now picked up my committee's recommendations and will seek to amend those during the course of the debate on this legislation. I support the bill and commend my report and this bill to the Senate.

Executive Secretary - Shared Parenting Council of Australia
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