Dissenting Report by the Australian Democrats and the Australian Greens
In considering the recommendations made by the
Committee every effort has been made, in the limited time available, to provide
constructive comment on these significant legislative changes to family law
practice in Australia.
The report was presented in draft format at 6pm on the 22 March 2006 with advice that minority reports would need
to be completed by COB on the following day. This deadline was then extended
until 1pm on the 24 March. A
thirty-six hour period is an inadequate timeframe in which to consider the
implications of such a far reaching piece of legislation
We regret that we have not been afforded more time by
the Committee to consider the implications of its recommendations. We support the need for Family Law reform and
are generally encouraged by the committee’s recommendation 7. However, it is our view that the major
recommendations in the report do not go far enough in addressing the major
problems with this legislation.
Specifically we are concerned with the following
aspects of the bill:
- the bill privileges
parents’ rights over parental responsibilities and children’s rights;
- the notion of equal
shared parenting as it is presented in this bill reflects a
commodification of children that fails to address the best interests of
the child based on individual need and circumstances;
- the definition of
domestic violence adopted in this bill fails to address the complexity and
multi-dimensionality and in so doing does not provide adequately for
family members at risk of family violence, particularly to women and
- the budgetary
provisions and resource allocations are not extensive enough to facilitate
the outcomes and processes contained in this bill. They are not adequate
enough to meet the level of service delivery, staff training, geographical
dispersion required in complex family circumstances.
Issues of Major
- Parenting time v parental responsibility and equal parental
responsibility v joint parental responsibility
1.5 We note the discussion in the Chair’s draft of these two
concepts. While ‘equal shared parental responsibility’ and ‘equal time’ are not
one and the same, they are inter-related in a way that creates an unacceptable
formula in the bill.
We share the concerns of Relationships Australia, who
acknowledge that the concept has moved from a ‘presumption of equal time’ to a
presumption of ‘equal shared parental responsibility’. However, we are
concerned that with a starting point of a child spending ‘equal time’ or
‘substantial and significant time’ with each parent this will be a de facto
presumption of equal time.
The operation of a presumption such as this, de facto
or otherwise, is likely to lead to an inappropriate and harmful focus in
determining what is best for children. Women’s Legal Services Australia submits
presumption of contact has permeated family law practice and led to a
pro-contact culture that promotes the right to contact over safety [which]
undermines the child’s best interests in that it fails to properly prioritise
the adverse effects on children of being exposed to abuse either directly or by
witnessing the abuse of a parent.
We acknowledge that a stable environment
encourages healthy child development. However, there has been no conclusive
evidence to prove that a presumption of equal time rather than a consideration
of the child’s unique circumstances in each case would be of any benefit to a
We note the evidence provided by the National Council
for Single Mothers and their Children that:
is a body of research evidence that says attachment is enormously significant
to children’s healthy development. Children need to feel secure in their
attachment and in knowing the circumstances of their environment; they have to
have friendship and relationship circles. All of those presume some level of
continuity of experience and the younger the child the more critical that is.
The presumption in this legislation is likely to have
significant interaction with a child’s attachment. This evidence reinforces the
need for individual assessments based on the circumstances and needs of each
This position is supported by evidence, based on
experience in family law practice provided by Women’s Legal Services Australia
to the inquiry that:
provisions in sections 65DAA and 63DA, which require consideration or direct
attention to specific types of parenting arrangements – namely, equal time or
substantially shared time arrangements – derogate from a free and open
assessment of what arrangement may be best for children in a specific case.
Further, we consider that the bill and its effects
would benefit from a change in language from reference to an ‘equal’
distribution of responsibility to one of ‘joint’ parental responsibility. This
still implies a cooperative approach and by removing the potentially divisive
elements the focus is more appropriately placed on parental responsibility.
As submitted by Family Services Australia during
evidence to this inquiry, use of the term “equal shared parental
responsibility” and concepts of “equal and substantial time” in relation to
parenting orders prioritises parental rights over child’s best interests,
leading to time spent with the child becoming an issue of “entitlement”.
We appreciate the Chair’s intention in recommending
that a definition of “equal shared responsibility” be inserted in the bill.
Depending on the content of such a definition it may ameliorate the operation
of the de facto presumption referred to above. However, considering the
provisions for “equal time” and “substantial shared time” in the bill, we do
not agree that such an inclusion would sufficiently address our concerns. Our
concerns would only be addressed by the removal of these provisions entirely
from the bill.
The language in the bill should be changed to replace
all references to “equal shared responsibility” with the term “joint
A presumption of
equal shared responsibility should not be introduced. The Democrats and the
Greens are of the view that each case should be considered on its own merits
with references to its unique circumstances.
- Determining the best interests of the child
We support the evidence presented in the Chair’s Report
that was provided by the Family Law Section of the Law Council of Australia and
Women’s Legal Services of Australia on this point. It is our view that the
rejection of the two-tiered approach by these groups and others should be
It is important to note that the new structure may
especially disadvantage children who have previously experienced family
violence or abuse. As pointed out by Women’s Legal Services Australia:
two primary considerations will be in direct conflict with each other wherever
violence or abuse is alleged because it is almost impossible to maintain a
meaningful relationship with an abusive parent and also protect the child from
harm from that person.
We object particularly to the relegation of children’s
views to the list of ‘additional considerations’. This increases the risk of
safety being de-prioritised in decision making.
We agree with the Law Society of South Australia’s
position that the bill is:
parent-centric and in no way support the child or young person in negotiations
It is essential that these laws do not encourage
parents to facilitate an unsafe relationship in circumstances of family
violence, abuse or neglect.
We also note that section 60CC contains two new areas
of concern. Subsection 60CC(3)(c) or the “friendly parent provision” and
related subsection 60CC(4) are have been criticised extensively during the
Committee process. We do not support these inclusions to the bill.
It must be clearly understood that a 'meaningful
relationship' means a relationship in which the child has not been and is not
at risk of exposure to family violence, abuse or neglect.
We do not agree with the Chair’s suggestion that a
clarification of the relationship between the considerations will alleviate the
concerns raised by these new provisions. The evidence presented in favour of
retaining the current structure is strong and there is a lack of convincing
evidence that the new structure will create positive results for children.
S60CC should not be introduced. The current structure
in s68F should be retained. The division of considerations for determining a
child’s best interests into primary and additional considerations is
unnecessary and do not truly reflect an adequate response to this issue.
That the current structure of s68F be retained and used
in s60CC such that there is one list of criteria for assessing children's best
relationship' be explicitly defined within the Bill as a relationship in which the child is
not at risk of exposure to family violence, abuse or neglect.
- Definition of family violence
We recognise the intention of the Committee in
expanding the “reasonableness” test in their recommendation. We consider that
this definition is not an adequate response to the issues raised during the
inquiry process in relation to family and domestic violence.
The Family Issues Committee of the Law Society of NSW
violence is complex. In all but the simple cases family violence is not just an
action, it is a course of actions. It is not just an event, it is a progression
of events. Family violence often follows a complex cycle. Therefore, to treat
family violence in a mono-dimensional manner in legislation is to treat family
violence in an extremely simplistic manner, which is potentially dangerous and
disempowering to victims and survivors of violence.
We are opposed to the application of an objective test
such as that proposed by this bill. One of our primary concerns relate to what
we believe is a fundamental misunderstanding of the nature of domestic
Women’s Legal Services Australia submitted to the
inquiry that victims of family domestic violence have a unique perception of
the real threat posed to their safety by an abuser:
Victims of violence learn to ‘read’ the perpetrator of
violence and know what is coming next. It may appear to an outsider that a
specific incident should not ‘reasonably’ cause the victim to fear for her
safety, but her experience tells her otherwise.
Our other primary concern is over the consequences of
applying an objective test in situations of family and domestic violence.
According to the submission by the Human Rights and Equal Opportunity
...applying an objective test as proposed may dissuade
parties from seeking the protection of the Court where they do not have
documentary or third party witness evidence, which in many cases of abuse or
family violence is not available.
We support this view and, therefore, must reject the
amended definition proposed by the Chair’s draft.
We endorse the Chair’s recommendation that the
Government’s use of the results of research being undertaken by the Australian
Institute of Family Studies into family violence but believe it should have
recommended a review for the purpose of achieving an improved and consistent
definition in all jurisdictions.
The definition of family violence should not be
amended. The proposed tests are not adequate.
Upon completion of
the Australian Institute of Family Studies review; the Government should work
closely with State and Territory Governments to formulate a comprehensive,
effective and uniform definition of family violence.
- Costs order for false allegations
We endorse the Chair’s recommendation that s117AB be
removed from the bill.
We seek to add to the comments supporting the removal
of this provision.
In its submission to the inquiry the Family Issues
Committee of the Law Society of NSW stated that it:
that section 117AB will have the unintended consequence of generating far more
disputation about costs.
We believe that given the evidence submitted to the
inquiry, the current definition and the difficulty posed to victims in
defending a charge of making a false allegation, let alone facing it in the
first place, perpetrators will be more likely to use this as an avenue to gain
advantage in proceedings.
Additionally, we consider it important to note the
evidence provided by the National Council for Single Mothers and their Children
in relation to the use of false allegations that exist in the system currently.
In evidence to the inquiry, Ms
on behalf of the Council, stated:
want to particularly address the notion that raising allegations of violence
and abuse gives you a tactical advantage in court processes. The reality is
quite contrary to that; it is a disadvantage. Every day we hear women and
grandparents being told by their lawyer not to raise domestic violence or child
abuse issues because they will be seen as hostile and will risk losing
This evidence presents a chilling picture about the current
state of proceedings relating to the custody of children where family violence
is a real and present issue. The prohibitive nature of cost orders would only
compound this problem.
- Compulsory Mediation
While we support the concept of
alternative dispute resolution mechanisms and a less adversarial
approach, we are concerned that in circumstances of family violence, these
proposals introducing compulsory mediation will be problematic.
We are concerned that compulsory mediation could push
parents into potentially unsafe situations. The requirements to satisfy a court
that there are 'reasonable grounds' for believing that violence or abuse has
occurred will mean that parents will be even more reluctant to disclose
violence or abuse. Further, the screening tools may continue to be ineffective
and result in inappropriate cases being pushed through the system.
The need to certify 'genuine effort' has been made to
resolve issues places great responsibility onto the mediator. When combined
with performance measures focused on ensuring that agreements are reached, the
requirement to certify a participant’s ‘genuine effort’ may pressure mediators
into continuing with dispute resolution in situations where they consider it
inappropriate, or acquiescing to agreements which are unlikely to lead to safe
or satisfactory outcomes.
The requirement that parties make a 'genuine effort' is
particularly problematic in the context of the provisions relating to 'false
allegations'. The current exemptions for violence and abuse are too narrow and
the obstacles to making allegations are too great. This may force more
inappropriate cases into mediation, and discourage victims from speaking up in
circumstances where they are concerned that they are unable to substantiate
their allegations fully.
Compulsory mediation could lead to increasing numbers
of difficult clients and cases, particularly where clients are unwilling or
intransigent clients and are not looking for a mediated solution and seek to
use it as an opportunity for confrontation, dispute or intimidation.
We are also concerned about an increased demand for
mediation services where sufficient well-trained and highly experienced
mediators are unlikely to be available. The sector has given evidence that it
does not have the capacity to cope with this increased demand, and it will take
time to develop this capacity.
A sworn statement by a parent that violence or abuse
has occurred should be accepted as grounds for a modified mediation process or
use of the court system.
Mediators should have
the ability to certify that a dispute is not suitable for mediation; the
obligation to certify that a 'genuine effort' has been made under these
circumstances should be removed.
processes for family violence must be improved
- Quality of Family Dispute Resolution Services
We are also concerned about the impact of a move to
compulsory mediation on the capacity of the sector to provide the necessary
quantity and quality of family dispute resolution services.
To this end, we strongly suggest that thought is given
to forward planning and transitionary measures, so as to ensure that the sudden
increase in demand for family dispute resolution services brought about by
compulsory mediation does not result in poor outcomes for families.
The Committee heard evidence from a number of groups
who were concerned that the proposed performance measures for Family
Relationship Centres focus on rates of agreement rather than on the quality of
outcomes. It is essential to ensure that performance measures ensure that
mediation outcomes attempt to deliver the best result for the children
involved, and that case loads and funding pressures do not diminish the quality
of their lives.
1.51 That the following measures are undertaken to ensure
quality in family dispute resolution services:
- Tracking and modelling of the
demand for family dispute resolution services.
- Forward planning to ensure sufficient
- Increase in specialised training
for mediators in family dispute resolution to ensure there are enough
- An accreditation system for
mediators which ensures they have the knowledge, skills and experience
necessary to undertake mediation in a compulsory system and ensures the
ongoing quality of their work
- An accreditation process for
training courses in family dispute resolution that ensures students are
being taught these skills.
- The Attorney-General's Department
should consult with specialised domestic violence resource and training
organisations to develop appropriate processes for screening family
- Research and development be
undertaken into more effective screening processes for undisclosed family
- Further research and development
into effective mediation and dispute resolution practices for (i)
unwilling, intransigent and confrontational clients; (ii) situations of
potential undisclosed family violence
- A model of best practice be for
mediators dealing with (i) unwilling, intransigent and confrontational
clients; (ii) situations of potential undisclosed family violence.
- Anyone involved in counselling,
screening or mediation should at a minimum be competent to recognised and
respond to clients affected by family violence.
- Clear guidelines, quality assurance
and accreditation systems for FRCs to ensure the safety of clients and
staff (see below).
- Mediators should have the ability
to certify that a dispute is not suitable for mediation.
- The obligation for mediators to
certify that a 'genuine effort' has been should be removed under
circumstances where they certify that the dispute is not suitable for
- That performance measures for FRCs
include the need to demonstrate that arrangements for children agreed to
in mediation are actually in their best interests.
- Resources, particularly for regional and remote communities
Considerable comment has been made on the unique issues
which face families living in rural and remote areas. It is widely acknowledged that the isolation,
cost of living and high unemployment rates place additional pressures on
families that may already be facing difficulties.
The changes set out in this legislation also need to
take into account the circumstances of families in remote areas. It is important that potential counselling
services are provided with additional resources to offset the cost of
transportation and service delivery in remote areas. Counselling services also need to be
culturally appropriate and counsellors need to be provided with additional
training to ensure they are familiar with the issues facing families in
The resourcing of FRCs in regional areas is of critical
importance – as adequate resourcing will ensure that people living in regional
and remote areas are able to access the services the Government is requiring
them to participate in. The cost of
service provision in regional areas is higher and the more remote the area the
fewer service centres available. To
counter this natural disadvantage, greater targeted resourcing needs to be
provided to FRCs and there staff operating in regional and remote areas.
While we support the recommendations made by the
Committee – we believe that it should be developed further to include:
burden to people accessing dispute resolution services in regional areas due to
there remote location
appropriate community education on the types of services available and what the
service is designed to achieve and how it is accessed.
publication in rural and remote areas that dispute resolution services are
available and able to be accessed in remote areas without additional travel
imperative that regional and remote communities are properly resourced to
provide counselling services with counselling staff who have been specifically
trained in the issues facing families living in regional and remote areas
from compulsory participation in services for those who may be unable to attend
for any of the prohibitive reasons listed above.
There must be recognition of the disadvantage faced by
those forced to access external services where a lack of access to technology
prevents the use of services including online and telephone services.
Recognition should also be given to the issue of the
inability of other disadvantaged groups to access services, for reasons other
than geographical remoteness. These groups include those on a low income or
those with health or mental health issues.
That funding service delivery under the provisions of
the bill are appropriate to the particular needs of regional and remote
compulsory participation in services for those who may be unable to attend for
any of the prohibitive reasons listed above.
Senator Andrew Bartlett
Senator Natasha Stott Despoja
Senator Rachel Siewert
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