Mar 1, 2006

Family Law Amendment (Shared Parental Responsibility) Bill 2005

Family Law Amendment (Shared Parental Responsibility) Bill 2005

1 March 2006

Mr ALBANESE (Grayndler) (11.44 am)—I rise to speak in favour of Labor’s amendments to the Family Law Amendment (Shared Parental Responsibility) Bill 2005. This bill is an extremely sensitive and personal one which will impact intimately on the lives of many Australian families. The bill represents a fundamental shift in family law. Labor generally supports many of the changes which encourage parental responsibility after a relationship breakdown. It is appropriate that the bill focus on the best interests of children in these situations, rather than on perceived parental rights.

Efforts to reduce the trauma of separation and divorce for families with children are also welcome. However, there are still some important concerns which give rise to the amendments Labor is proposing. It seems to me that certain aspects of this bill have not been completely thought through, and are therefore based on certain assumptions about the behaviour of separating or divorcing couples and their ability to be reasonable in what is a truly extraordinary situation. Yet the implications of this family law bill will make life changing differences for Australian children. If aspects of the legislation contain gaps, we will potentially create enormous problems and further heartache during what is already an extremely difficult time for families.

Legislation is only as good as its weakest link and, in providing a framework for separating and divorcing parents to work within, we must ensure that we do not trap vulnerable people in situations that are damaging or even dangerous. I would like to firstly draw attention to the considerations of shared parenting responsibility and the requirement to consider shared parenting time. Ideally, children would have equal contact with both parents. That is a gut instinct which is hard to demur from. However, we do not live in an ideal world. Of paramount importance must be consideration of factors that would make it not in the child’s best interests in all cases. While no divorcing parent would want to compromise the best interests of their child, the risk in shared parenting time is of turning the child’s life into a quantitatively divisible entity. Time, financial support and even living arrangements are tangible and divisible. However, the impact of these in a child’s psychological and emotional development cannot be so easily quantified or organised.

I am a father and I love my son. I miss him each and every night I am not at home. The biggest sacrifice that a politician makes is the number of nights we have to spend away from our families. I think that practical reality gives us just a small portion of insight into the difficult emotional trauma which separation causes. But let us consider the disruptive impact of splitting time equally between two parents who are separated or divorced: two houses, two bedrooms, two sets of toys, two places to stay, two neighbourhoods, two routines to establish. We talk about creating shared parenting, but we do not want to create a situation where children’s lives become part of a timetable, making children rotate from one house to another, from one bedroom to another, from one routine to another. The impact that so much change and transience can have on children must be considered, particularly since the emotional and psychological effects of shared parenting arrangements can be less obvious.

It may well be that in some cases shared parenting in two houses works in a way which is consistent with the best interests of the child. If that is the case, then I am all for it—that is the ideal—but only if it is in the interests of the child. Two houses can mean two sets of rules and possibly even two completely different ways of life. In the case of less amicable divorces, a child could spend his time in two houses in which completely different ideas about life, family, behaviour, expectations and habits are nurtured. Shared parenting responsibility assumes that at least a certain level of collaboration and cooperation will continue post divorce, yet this clearly will not always be the case. What happens when this breaks down in the most extreme of ways and children are made to spend equal amounts of significant time with parents who oppose each other in every way, including the way they raise their children? It is also not unreasonable to imagine that children could suffer as a result of the complex emotional tug of war that occurs between parents in situations such as these.

Concerning the introduction of compulsory mediation, in theory I believe this change is a positive one. I do not think anyone would oppose moves that aim to make separation and divorce as smooth as possible, and with as little litigation and hostility as possible. That is the ideal. But we must not fool ourselves about the reality. The trauma of a separation or divorce can make even the most reasonable people act unreasonably and even the most amicable of divorces can be excruciatingly difficult.

Certainly for some the compulsory mediation process will be helpful; for others, however, it will be just the opposite—yet another occasion for hostility, a further reinforcement and refuelling of emotions that are already running high. I am also concerned that compulsory mediation will force some parents into negotiations with people whom they have come to fear or feel intimidated by.

Central to the family law system reforms is the establishment of family relationship centres, a one-stop shop that will provide information, advice and mediation services. Such centres clearly have been conceived with the best of intentions; however, they require proper implementation, proper funding, tendering processes and proper training programs for the staff who will work there. Indeed, the success of family relationship centres will rely on the provision of high-quality service which is properly resourced.

Unfortunately, the bill in its current form does not discuss many of these aspects in detail. Worryingly, key issues such as the accreditation of family relationship centres, quality assurance, accountability and protocols for screening for violence are not dealt with in detail in this bill. We are told that the detail is in the regulations, but they are not yet available. It appears that, unlike the current situation, FRCs will not need to be members of industry representative bodies. This eliminates a level of quality assurance and leaves room for organisations with political agendas to be the first point of contact for people who are already in a fragile state of mind. Who will monitor these bodies and determine the appropriateness of their outcomes? At the very least, all FRCs should be required to have all mediators trained and accredited in domestic violence competencies. Here we have the cart before the horse. We are debating legislative changes without any detail. We have to rely on the government to introduce regulations as we go. This is simply not good enough. People’s lives could be put at risk if correct processes are not put in place now.

Another key concern about the mediation process, and one that is particularly relevant to my electorate of Grayndler, is how the process will cater for people from different cultural, linguistic and religious backgrounds. It is all very well to introduce compulsory mediation, but without appropriate language and cultural provisions and training such services would be effectively inaccessible to many people in my electorate. Many of my constituents approach me with frustrations about accessing services such as Centrelink and legal centres. Imagine the potential for miscommunication and misunderstandings relating to language and culture that could arise in the context of relationship breakdowns and family separations. Those of us whose first language is English immediately take for granted our ability to communicate and navigate our way around our relationships, our daily lives and the social structures we move in. However, anyone who has been in my electorate would appreciate that things are not so easy for many people for whom English is not their first or even their second language or for people who come from different cultures.

It is also extremely important that adequate provisions are in place for Indigenous communities, where the rate of relationship breakdown and domestic violence is alarmingly high and where family relationship centres are most needed. A publication put out by the Queensland government entitled "Aboriginal English in the Courts" refers specifically to the difficulties Aboriginal people experience due to the failures of the legal system to recognise the differences between Aboriginal English and Australian standard English. Simple things that we take for granted, such as the way questions are phrased and important nonverbal features of languages such as gestures, eye contact and silence, can be easily misinterpreted by standard English speakers who are unaware of the differences. This can lead to crucial communication breakdowns. I am concerned that such difficulties, if not identified and addressed in training the staff of family relationship centres, could be problematic for Indigenous people as well as for people from other cultures.

What provisions are in place to ensure that people of other language backgrounds can have access to interpreters or to counsellors who speak their language? What appropriate training will there be for staff to help them understand cultural differences which maybe highly sensitive and salient in the context of relationships, divorce and even identifying domestic violence? Where will these important considerations be addressed? And what of the other unanswered questions, such as the issue of quality assurance for these centres? I understand there will be no complaints mechanism in place. What processes will ensure the accountability of these centres or will we see more management disasters similar to those that the Attorney­General presided over during his time in the immigration portfolio? If the best interests of the child are really at heart, then it is unacceptable that these questions remain unanswered before the establishment of mediation and family relationship centres.

The proposed changes to the nature and status of parenting plans are also concerning. Substantially increasing the role of these plans without amendments in place, such as a seven-day cooling off period and provisions to invalidate parenting plans if made under threat, duress, coercion or manipulation, are vitally important to protect all involved in the plans. Once again, no-one would object to parenting plans. They are of course a good idea. But we have to get them right, and we have to do that based upon reality rather than a utopian view which pretends that these situations are not by their very nature emotional, difficult and very traumatic. These safeguards need to be introduced if we are serious about acting in the best interests of children. Concerning also is the lack of legislated financial support for this mediation. Labor proposes that three hours of free mediation must be written into the legislation.

Another shortcoming of the bill in its current form relates to safety in the case of violent relationships and screening for domestic violence. Here Labor has proposed amendments that would make safety a priority, including a clear exemption from face-to-face mediation for those in violent relationships and proper screening and protection from coercion and intimidation when making parenting plans. The screening and identification of domestic violence is imperative. Statistics show that most women do not disclose domestic violence. For this reason it is vitally important that strategies be developed and implemented to overcome the issue of non-disclosure of violence prior to and during mediation.

When I have had representations from women who work with the Indigenous community in my electorate, they are particularly conscious that some communities are less likely to report domestic violence than others. The Indigenous community is one in which sadly that is the case. Community groups in my electorate have approached me expressing their grave concerns about the lack of thought that has gone into this aspect of the proposed legislation. Marrickville Legal Centre witnesses daily the web of difficulties encountered by women in violent relationships. Women present at their office scared, intimidated and deflated but still do not feel they can report domestic violence. They are concerned that some women could see mediation as a further barrier to reporting violence. Indeed, it is difficult to see how forced mediation would be appropriate in cases like these without any practical screening mechanisms in place. There is also a concern that mediation could be seen inappropriately by women as a platform on which to address domestic violence. This is clearly not the purpose of mediation as specified in this bill.

Greater attention to domestic violence and the dynamics of abuse is clearly required. Twenty-three per cent of women who have been married or in a de facto relationship have experienced violence—that is, one in four women have experienced domestic violence. That is a shameful figure. Every child in these relationships, too, is a victim of domestic violence either directly or as a witness to that violence. Despite this, the government has insisted on changing the definition of ‘family violence’. This bill amends the definition of family violence to require the victim:

… reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

Clearly, what is reasonable for one person is not necessarily reasonable for another. A woman who has been caught in a violent relationship may find herself having to prove that an incident is threatening and fearful to her, yet she may find it difficult to even talk about the nature of these incidents or of her relationship. Again, cultural factors must be taken in consideration. Introducing a ‘reasonable’ test sends the wrong message to the community about the use and experience of violence. This bill has the potential to move us backwards, decriminalising domestic violence by failing to identify it and address it appropriately in screening processes prior to mediation. A sad consequence will be that in many instances domestic violence will not be identified. This will in turn lead to the victim’s experience of violence not being properly factored into decision making.

Labor proposes that the current definition of ‘family violence’ should be adopted. The so-called objective test the government has introduced makes it even more difficult for women alleging domestic violence to come forward. A so-called objective test will not take into consideration the personal circumstances of the victim. Couple this with the false allegations provision, whereby the courts are required to order costs against parties who knowingly make false allegations or statements, and we have a real problem. Family violence can be notoriously difficult to prove. This provision is a further disincentive for women not to report domestic violence for fear they will face a penalty if they are unable to substantiate their allegations. As suggested in Labor’s amendments, an exemption from face-to-face mediation in violent relationships and proper screening for violent cases must be adopted.

It is widely known that there is already a problem of false denial of violence by abused women. The fact is that the underreporting of domestic violence is a much bigger problem than the false allegations. I do not suggest for one second that false allegations have not been made, and that is a tragedy for the person the allegations are made against. But it is the role of government to look at the overall impact of its legislation. The truth is that you would think, from the way that the government has framed this legislation, that the biggest problem is false allegations rather than underreporting. It is just not the case.

As Labor suggest in our amendments, this bill must maintain the current definition of ‘family violence’ and also include circumstances in which a child witnesses or is exposed to violence. We also believe that the provisions concerning cost penalties for false allegations of violence should be deleted. In the end, the amendments Labor are proposing go to the heart of what this bill should be about: protecting and ensuring the best interests of the child, safeguarding all parties involved and providing comprehensive, accountable services which are accessible to all.

No-one wants families to break down. No-one wants separation and divorce to be more difficult than it already is. Nobody wants to see any child suffer. And nobody wants people to have to go into unnecessary litigation if other alternatives are valid. But we must not simply legislate for the best-case scenario, hoping that by setting a good example the most dire cases will simply follow suit or somehow fall into place. It is arrogant, short-sighted and simply wrong to fail to provide appropriate support for people of different cultural and linguistic backgrounds. It is not good enough to do anything other than all in our power to stop domestic violence.

I commend Labor’s amendments to this bill. I commend those members of parliament who have worked very hard on these issues, a very challenging area of government legislation. I think people on both sides of the House have attempted to address this in good faith. But there are weaknesses in this legislation. We need to get it right from the beginning because the consequences of getting it wrong will have a dramatic impact on the parties who are separating or divorcing—and, most importantly, on children in these situations. It is a tragedy that if you look at difficulties people have later in life you can often see that they experienced difficulties while they were children. That is why we need to get it right. I support Labor’s amendments to this bill and commend them to the House.