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Attorney-General Speech - Newcastle Family Law Pathways Conference (13 June 2008)


Consider carefully what McClelland (ALP) includes and excludes in his speech, and note what issues are 'privileged'.

Attorney-General Media Release

From: Media Releases
To: Media Releases
Subject: ATTORNEY-GENERAL SPEECH - NEWCASTLE FAMILY PATHWAYS CONFERENCE
Date: Friday, 13 June 2008 15:05:32

ATTORNEY-GENERAL ROBERT MCCLELLAND

Newcastle Gateway Project
Family Pathways Conference

Quality Hotel Noah's on the Beach,
Cnr Shortland Esplanade & Zaara Street,
Newcastle NSW

Friday 13 June 2008, 9.20am


[Acknowledgements]

- First, may I acknowledge the traditional owners of the land we meet on - and pay my respects to their elders, both past and present.

[Other Acknowledgements]

- Chair - Jonathon Toussaint, Executive Manager, Interrelate Family Centres

- Kevin Lapthorn, Federal Magistrate, Federal Magistrates Court of Australia (also speaking)

- Sally Dover, Deputy Mayor/Councillor, Port Stephens Council

[Introduction]

1. Good morning everyone.

It's a great pleasure to speak at this important conference - to have the opportunity to join all of you who are here to help strengthen cooperation between the courts, legal services and family relationship services.

2. It gives me the opportunity to outline some key principles the Government holds when it comes to family law and the resolution of family disputes.

3. We all need to ensure that the family law system works in a way that best serves Australians in their time of need.

4. As Attorney-General and as a parent, I want to see a family law system:

- where family disputes are resolved outside courts wherever possible;

- where there are effective ways of getting entrenched cases out of courts; and

- where situations of family violence and child abuse are managed safely and effectively.

5. I also want to foster a culture of collaboration between professionals involved in this area of law. In particular, having lawyers, counsellors, and the courts actively facilitate the ability of their clients to access each other's services.

6. I'm confident that such an approach will lead to better outcomes for Australian families, and in particular, their children.  

[Changes to Family Law]

7. It's probably little surprise to those of you who have worked within the family law system for a number of years to learn that research into family breakdown always reveals one important fact.

8. The way family disputes are resolved affect the children involved.

9. And we know, in particular, that ongoing conflict between parents hurts kids.   

10.  Clearly, it's essential that Australia's family law system results in good decisions for children. The Family Law Act itself has, as an underlying principle, the need to ensure that disputes involving children are always resolved in the best interests of the child.

But furthermore, the system should also ensure that decisions build cooperation between parents, or at the very least, do not escalate parental conflict.

[Previous Changes to the Family Law Act]       

11. Recent changes to the Family Law Act have sought to do this.

12. In 1995, amendments were made to reflect society's views on parental responsibility for the care and protection of children.

13. The changes affirmed the potential of mediation as a process to help parents make arrangements for their children, and helped reduce the likelihood that disputes would end up in court.

14. The bi-partisan 2003 Parliamentary report, Every Picture Tells a Story, initiated further amendments in 2005.

15. This House of Representatives Standing Committee report gave stark insights into the emotional pain and difficulties faced by families, following a relationship breakdown.  

16. It described the damage to children of unnecessary conflict, and what was happening to children who grow up without the positive and respectful involvement of both parents in their lives.

17. What was learnt was that there was still some way to go in creating a system that better served the best interests of the child.

18. The report was a catalyst for a number of changes to assist separating families, including:

- the introduction of family dispute resolution, for parents to try and make arrangements for their children before taking a matter to court;

- major changes to family law, including the introduction of a presumption of equal shared parental responsibility; and

- changes to make court procedures more responsive to the needs of children, when a legal decision about their best interests was required.

19. Since then, other services have been, or are, being introduced, including:

- a new National Advice Line; and

- the establishment Family Relationship Centres, including the one here in Newcastle that opened in July last year. Since winning office the Rudd Government has provided funding for an additional 25 FRCs, bringing the total around the country up to 65.

20. For high conflict families, more children's contact services and Parenting Order Programs have been established, including Newcastle's program called 'Keeping Contact'.

21. These build on existing services funded through the Family Relationship Services Program which includes a number of the services represented here today.

22. It's a bit early to evaluate these changes because they haven't as yet been fully implemented. But the raw numbers are promising.

23. For example, from July 2007 to April 2008 the total applications for final orders in the Family Court of Australia and the Federal Magistrates Court are 18.5 percent below that for the previous financial year.

24. And there's also been enormous demand for community-based family dispute resolution since the introduction of Family Relationship Centres in July 2006.
At the end of March 2008, the first 40 of those Centres have held almost 15,300 family dispute resolution sessions.

25. People are clearly voting with their feet, but there are still some emerging challenges that need to be confronted.

[Actively Resolving Disputes before Court]

26. The Australian community expects, quite rightly, that Family Relationship Centres and other funded services provide an effective alternative to the courts - costly litigation should not be the automatic fate of families in conflict.

27. In relation to family dispute resolution, I've heard a number of concerns about the time it takes to get a certificate.  

28. While some of these concerns relate to waiting times, I believe they also reflect a fundamental misunderstanding of the reason for the new family dispute resolution requirements.

29. I am concerned that some people only see the process as a means to gain a certificate. Once received, they are able to head to court without a second thought.

30. This thinking needs to change. The aim of dispute resolution is to ensure that as many parents as possible genuinely try to sort through their differences without facing court.

31. It also enables parents to establish a basis for making joint decisions about the best interests of their children's future.

32. For this reason, dispute resolution providers and legal practitioners need to do more than simply follow a paint-by-numbers process - they must actively help parents develop safe and workable agreements.

[Entrenched Cases]

33. While we should be aiming to keep as many cases as possible out of the courts, it's inevitable that some matters will end up there, and become the subject of ongoing litigation.  

34. Not only do these entrenched matters consume enormous amounts of court and other public resources.
They also have huge emotional costs for children who have to endure ongoing conflict between their parents.

35. The Parenting Orders Program plays a key role in this regard.  
But there's also potential for Family Relationship Centres and other services to help resolve entrenched cases.

36. Just as importantly, family services and the courts need to ensure that their processes interlock smoothly, and that appropriate and coordinated interventions are used for complex matters, both within and outside the court system.

37. I want to make collaboration a hallmark of the family law system.

[Family Violence]

38. Regardless of whether cases are in or outside the courts, safety issues must be adequately addressed.

39. Not surprisingly, during parental separation there is often a higher risk of family violence.  

40. Research has shown that women escaping violent relationships may find the violence escalates after they leave.

For others, the violence may not start until the separation.

41. Sadly, the damaging impact of family violence is felt not only by its direct victims.

Witnessing violence can also damage children's development.

42. Family violence is a crime, and it cannot be tolerated in our society.  

43. The protection of people threatened by, and subject to violence, must be our immediate priority.

44. And once immediate safety issues are addressed, the family law system must find ways to assist families make safe, appropriate arrangements for their children.

45. As a parent, my family's wellbeing is my first priority.

And as Attorney-General, I am keen to find better ways to respond to family violence in the wider Australian community through the family law system.

46. As my colleague the Minister for Home Affairs, Bob Debus announced at the Family Law Conference in April, identifying and responding to family violence should be an essential competency for those seeking accreditation as a family dispute resolution practitioner.  

47. In line with this announcement, this competency will be included in updated accreditation standards for the sector, effective from July next year.

We are also interested in working with the legal profession to consider whether a similar requirement should apply to family lawyers.

48. These are all important steps, but other strategies are needed, including:

- further support for victims of violence, and safeguards for victims who choose to use dispute resolution rather than court; and

- new methods of working effectively with perpetrators to stop further acts of violence.

49. We also need to dispel misconceptions about some of the family law changes, especially in relation to family violence.   

For example, many people think that everyone is required to attend family dispute resolution, even in situations of domestic violence or child abuse.

50. This is not the case. Parents do not have to attend family dispute resolution if there are reasonable grounds to believe that there is, or has been, a risk of family violence or child abuse by one of the parties involved in the proceedings.

51. Also, there does not seem to be a good understanding about the difference between equal shared parental responsibility and equal time with the child.

52. Some parents believe that equal shared parental responsibility means that children should spend equal time with each parent.

53. But shared parental responsibility is about parents having an equal role in making decisions on major long term issues that could affect their children. It's not about a straight down the line 50-50 split.

54. I mention this because these misconceptions can jeopardise the safety for victims of violence and abuse, and it is up to us to do all we can to dispel them.

55. When speaking of safety in relation to family law, I think it's important that I also make some short remarks about the Newcastle Family Court. The federal Labor member for Newcastle, Sharon Grierson, and the President of the Newcastle Law Society have brought to my attention community concern about court accommodation in Newcastle.

56. When in Opposition, I visited the current court building so I am also personally aware of the difficulties there.

57. As you know, a scoping study is being undertaken by the courts, which is expected to be completed later this year.  The court will be working in close consultation with the Department of Finance and my department on this. I will be taking a keen interest in the findings of the study.

58. But any proposal for improved court premises would, of course, need to be considered as part of the normal budget process.

[Integrated Approaches]

59. As I mentioned earlier, collaboration between family services is essential - integrated responses are needed to address the problems faced by families after separation.  

60. Such integration is even more important when families have experienced not only family violence, but also substance misuse, mental health concerns and other issues.
The courts, the legal professions and family relationship services need to work together closely and share their accumulated knowledge to address these issues.  

61. Legal aid commissions and community legal centres should not be left out of this collaboration as both provide a range of support services to families in need of assistance.

62. Community legal centres are locally accessible, client-focussed services, which help resolve problems at their root cause and avoid further involvement with the legal system.  

63. I know that community legal centres and Family Relationship Centres work hard to provide the best possible support through the strong relationships they create with local community and other service providers.

64. Legal aid commissions deal with some of the most complex family law disputes experienced by the most disadvantaged clients in the community.
They also provide well-established family dispute resolution services which consist of lawyer assisted mediation and conciliation, and often other input from counsellors and psychologists.

65. This is one such form of dispute resolution, which seeks to make robust agreements to settle matters out of court.  

66. It sits between the dispute resolution offered by the Family Relationship Centres and litigation, and is part of the diversity of services that I believe is required to best meet the needs of people facing delicate and difficult matters.  

67. It's also important to recognise the myriad of other services and service providers that support families after a relationship breakdown.

Many play key roles, but may not see themselves as part of 'the family law system'.

68. Nevertheless, how we describe the system is largely irrelevant to families.  

What is critical is that family members are connected to the services that they need.

69. Clearly we can't impose protocols for different sectors to work together.  

70. True collaboration and integration is far more dynamic.  

It needs to occur from the ground up, and take into account local diversity, local cultures and local issues. Gateway projects are an ideal avenue to stimulate this action, with the flexibility to deal with varying situations and services in different geographical areas.  

71. The wallet-sized card that your Gateway Network produced, titled My Family is Separating - What Now? is a good example of what can be achieved through collaboration across sectors.  

[Conclusion]

72. As a society, we expect parents to cooperate for the sake of their kids.  

73. The Australian taxpayer has the right to expect that its courts, professions and service providers also work together for the wellbeing of Australian children.

74. As I see it, that's the ideal at the core of this conference.

75. You are not simply representing sectional interests but have shown your desire to work collaboratively with colleagues and professional service providers.

That's the approach I will continue to encourage throughout Australia - in this instance Newcastle provides a good model for others to emulate.

76. I wish you every success for the future.

ENDS

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