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

Senator MASON (Queensland)

Senator MASON (Queensland) (20:19): 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 wasI should remind the Senate of thisbipartisan 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 coalitionand I share this with Senator Crossin and remarks made by other senatorsbelieves 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 makeI want to emphasise thisdeliberately 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?

Senator Humphries: Zero.

Senator MASON: Senator Humphries is right. There is not one.

Again, for this reason, the coalition does not support the bill.

The coalition argues that it will be a great tragedy if this bill starts a race to the bottom to see who can allege family violence first. Husband or wife: who alleges it first? Will be it be a race to the police to allege family violence first? That really worries the opposition. It beggars belief that the government simply closes its eyes to this likelihood. Let us see what happens in the future. I hope I am wrong, but I am not sure I am. If an allegation does not have to be substantiated, if it is purely subjective and there are no penalties for making knowingly false allegations, do we really believe that some family lawyers and litigants will not use this procedurally to gain leverage and exert pressure upon the other party? Do we really believe that they will not do that? I wish I was wrong about human nature.


If there is no longer a positive obligation to encourage and support a child to have a meaningful relationship with a former partner who is that child's parent, do we really believe that this will help children better cope at this most difficult time in their lives? Do we really believe that? If there is no longer a legal obligation, do we really believe that many people will not put their personal animosities, their conveniences and their comforts ahead of the objective best interests of their children? Just how much do we have to suspend our beliefs in order to pass this bill?

Just as the government does not believe that this bill will have negative consequences, it does not believe it will require any additional resourcing for the Family Court or that it will create any increased workload. In this bill the government demonstrates a lack of understanding of both human nature and the nature of the family law system. It is a system already stretched to the absolute limitdelays are endemic and practitioners already describe the Family Court as the court of fairytale. That is without adding the burden of this bill's provision to the mix.

Regrettably, the likely consequences of this bill will be a massive surge in the number of apprehended violence orders and temporary protection orders across Australia. I hope I am wrong, but I am just not sure I am going to be. Already discredited and all too often misused as tactical devices, DVOs will come into further disrepute and indeed further disdain. This is neither in the best interests of family law courts nor the children affected, let alone the women and children who genuinely need the protection of these court orders for their very safety.

This bill will likely lead to more false allegations being made in family law proceedings. More children will be deprived of time and contact with one of their parents. Enormous pressure will be put on litigants to settle against the threat of unfounded allegations that do not have to be substantiated by the other party, and that is the key. Given that around 94 per cent of all family law cases are resolved before formally going to trial, only six per cent of family law cases go to final judgment. There is plenty of bargaining being done in the shadow of the law, as the old expression goes.

While ostensibly intending to further protect those affected by violence and abuse with the shield of the law, the government has instead produced a club that parties to a dispute can use to freely trash each other. It is a club that the opposition is very concerned will be much used and indeed abused. The winners may well be the unscrupulous. The losers will be the real victimsthe kids who will be unfairly denied contact with both parents and indeed our justice system.

This is a difficult bill and I concede this is a very difficult area of law and public policy. I concede further that I am not an expert in this area, but I do know as a member of parliament that it is highly contentious, very emotional and very difficult. The coalition does not believe that this bill deserves the Senate's support. It does not believe the case for the amendments in schedule 1 of the bill has been made by the government.

Regrettably, I suspect the probably guillotining here tonight of this bill that is critical potentially for hundreds of thousands of people in this country. This is major legislation with a major impact. The bill will not receive the scrutiny it deserves, particularly in committee tonight, which is wrong, given that it will have such an enormous effect on the emotional and family structure in this country. This is a very important piece of legislation and will affect families throughout the nation. It will change the family dynamic. Indeed, it will change the prospects of custody for both men and women in our country. This is major legislation with major consequences.

In conclusion, I reiterate the coalition's deep concern about the drafting of this bill, the lack of evidence from the government to support these changes and the bill's dire implications for families already facing the heartache and difficulties of separation. It is such a pity we will not have further time, particularly in committee, to talk about the evidence that is available and ask the hard questions of the minister as to how the bill will operate. We are not going to have that time. It is a great pity and, given how important this bill is, it is ridiculous.

Executive Secretary - Shared Parenting Council of Australia
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