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

Senator FISHER (South Australia)

Senator FISHER (South Australia) (21:14): I rise to support the coalition's position on the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. I do want to focus in particular on the amendments proposed in item 17 of this bill to section 60CC(2)(a). Before I do that, however, I want to make it clear that I do not profess to be any sort of expert in family law.

I have had some experiences in court, some more recent that others, but I have certainly not been near and hope to never go near the Family Court or the Federal Magistrates Court exercising the family law jurisdiction. That said, I can read legislation, statutes and bills. On that basis, I have some questions, some of which I was fortunate enough to be able to ask during a Senate inquiry into this bill but which I was unfortunate, I think, not to have had answered through questions on notice during that inquiry.

I think this Senate is even more unfortunate that I and my colleagues and the likes of Senator Xenophon and Senator Madigan have not been allowed the proper time and the proper process to ask about the very important issues that underlie not only this bill but family law writ large as implemented in this country.

Item 17, as I understand itand I refer to the explanatory memorandumsays that the new subsection 60CC(2A) requires the court:
 when determining what is in a childs best interests, to give greater weight to the primary consideration that protects the child from harm in cases if there is inconsistency in applying the considerations.

The explanatory memorandum goes on to say that the new provision will make it clear that:
 the two primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the childs parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Obviously those are very important concerns. The explanatory memorandum then goes on to say:
Where child safety is a concern, this new provision will provide the courts with clear legislative guidance that protecting the child from harm is the priority consideration.

That is not the evidence that was given to the Senate committee. That was not the evidence that was reported in the Senate committee's report as a result of the inquiryclear legislative guidance.
Professor Richard Chisholm told the committee that the intended provision was anything but clear. Whilst he did say that this provision would improve the law, he recommended an amendment to it. As of this moment, we do not know if the government have taken it up or not and we will not have the opportunity to debate it because of the time we do not have to speak on or deal with the bill. But Professor Chisholm, before saying, 'Well, okay, this provision will make it better than it is at the moment,' said that this provision was yet another technical complication. That is hardly clear, despite the government's explanatory memorandum. He went on to say that, with the new subsection, the decision maker will have to decide if there is an inconsistency between the two provisions.

He went on to say that, if there is, greater weight must be given to the second provisionthe safety of the child. But how much greater? He argues that the new provision is certain to increase the amount of complication and technicality relating to determining what is best for children. That is hardly clear legislative guidance.

Nor, despite clear legislative guidance being claimed by the explanatory memorandum, is it guidance according to the Family Law Practitioners Association of Queensland. It told the inquiry that, in its view, rather than providing guidance the proposed amendment contained in the bill mandates a court to give greater weight to the second of the primary considerationsthat is, the safety of the childin the event of there being a conflict between that and the benefit to the child of having a meaningful relationship with both parents. The Family Law Practitioners Association of Queensland told the inquiry in its submission:
Such a provision removes the Courts licence to assess in each individual case the degree of risk, its probability or in the case of family violence its context in terms of frequency, intensity and recency in the determination of the weight to be given to such risk or harm.
It urges caution in terms of the legislation becoming:
 too specific, descriptive, prescriptive or presumptive with respect to the treatment of risk.

As far as we can tell, the government has done nothing about that concern expressed by the Family Law Practitioners Association of Queensland. In fact, it has flown in the face of it by maintaining the very provision that that association criticised and claiming in its recent supplementary explanatory memorandum that this provision provides clear legislative guidance. Well, poppycock!

As for the extent to which a child may be at risk of violence, there is nothing in the bill to make clear what is to be required by a court in terms of the second limb to which priority is now to be giventhat is, the need to protect the child from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence. How is it not going to be as simple as one party to the earlier relationship alleging a concern about violence? As Family Voice Australia said to the committee:

The phrase ―any inconsistency‖ virtually invites the court to ignore completely the requirement to consider ―the benefit to the child of having a meaningful relationship with both of the child's parents‖ once it decides to entertain an allegation of any kind about abuse or exposure to family violence.

So there is nothing clear about this provision at all. It is a mandate, not guidance. It is an invitation for one party to a former relationship to make an allegation. Worse than that, when we pressed the government and officers of the Attorney-General's Department to provide the government's evidence of the need for this position and to demonstrate its case that this provision will fix whatever it says is the problem, all the department and the government could provide was the report by the Australian Institute of Family Studies, which was foreshadowed by the Howard government in implementing the earlier reforms in 2006actually, the reforms in 2006, because this bill is no reform; reform in my book is usually good. The department, in answer to its question on notice, citing only the Institute of Family Studies report as evidence that the existing law needed change, cited findings that two-thirds of mothers and half of fathers separated since 2006 reported that their child's other parent had emotionally abused them. I thought it was the safety of the child that was paramount, not what happened to mum or dad.

The second so-called bit of evidence from the same report was that around one in four mothers and one in six fathers reported that the other parent had hurt them physically prior to separation. I make the same point: that is about the mums and dads; it is not the kids. The only one that gets close to the kids is this one: around one in five parents reported safety concerns associated with ongoing contact with a child's other parent. What does that mean? What is that by way of evidence? It is not hard to imagine in marriage breakups that one parent might want to allege concerns about safety in proximity of children from the former partner whom they liked a lot and with whom they are now largely disaffected.

Turning to my final point, which consolidates my concerns. I asked the department during the hearing:
What evidence do you have that item 17 of the bill will address that evidence and fix, for example, the concern that a fifth of parents have ongoing concerns about their child's safety?

Mrs Pirani from the department said:
I guess we do not know until the changes are made.

That is it. I guess the government does not know until the changes are made. My colleague Senator Mason talked about this bill really taking family law from being hell, or maybe it was the 2006 reforms that took it to being hell with hope. I reckon mums and dads will just want to hope like hell, because that is about all they are going to have, in my humble opinion, if this bill becomes law.

Executive Secretary - Shared Parenting Council of Australia
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