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Thursday, 26 May 2011
Page: 4828


Mr NEUMANN (Blair) (13:24): I rise to speak in support of the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. The member for Berowra has been in parliament for close to 40 years and I have been here for only four years but, with respect, he is simply wrong on issue after issue. Before I was elected to this place I was a family law specialist from 1996. I practised for nearly a quarter of a century in that jurisdiction, from the Magistrates Court in suburban Brisbane and other places to the High Court of Australia, where I have done cases involving family law from the most complex property settlements, to Hague convention cases, to the most egregious claims that have ever been made in relation to family violence and child abuse, to the most difficult cases involving relocation. Some of the cases I have done were reported in the Full Court of the Family Court Cases; cases involving parenting orders on an interim basis—cases like the Cowling case, which set the law for this type of matter. So I come with some experience on this issue, and the member for Berowra is simply wrong on issue after issue—a man of straw on numerous occasions.

This is about creating a safer and fairer family law system and prioritising the needs of children. More than 400 submissions were received in relation to that, and 73 per cent expressed support for the measures. This is an indication of strong community support in relation to this matter. The safety of children is prioritised, with clarification of the meaning of domestic violence issues; 'family violence' and 'abuse' are the terms in the legislation. It strengthens advisers' obligation, ensures the courts have better access to evidence and makes it easier for state and territory child protection authorities to participate—or 'intervene', as we used to call it—in relation to family law proceedings. There is no dispute between the two sides of politics about the fact that we need to provide for the protection and safety of children and that a child needs to have a meaningful relationship with both parents—that is in the best interests of the child where it is safe for that to occur.

It is important to recognise that the Family Law Act does state those things. Section 60CA says that the court, whether it be the Federal Magistrates Court or the Family Court, has to consider 'the best interests of the child as the paramount consideration.' Section 60B in part VII sets out the objects of the division with respect to looking after children: ensuring children have proper and adequate parenting; making sure that parents fulfil their obligations and responsibilities to children; and making sure that children have contact with other people who are important to their care, welfare and development. When a court looks at these types of matters in section 60CC, the court looks at a hierarchy of considerations. We are changing the primary considerations to make sure, front and centre, that the need to protect the child from abuse, neglect and family violence is the highest priority possible. We are elevating that where there is an inconsistency with the need to have a meaningful relationship with both parents. I cannot understand why those opposite do not see that as important.

The friendly parent provision also, in my long experience in the Family Court, from time to time does dissuade people from making arrangements which are in the best interests of a child and forces parents at times to consent to orders which they do not believe are in the best interests of children, handing a child over to a circumstance where that child may be exposed to abuse, neglect and family violence. Violence and abuse are catalysts for family breakdowns and they can often continue afterwards. Violence or abuse is unacceptable wherever it occurs and certainly in relation to children. The long-term damage as a result of family violence cannot be underestimated.

Evaluation of the so-called reforms of 2006 has been undertaken. These things have been looked at. We have three reports, one by a very learned former judge, Professor Richard Chisholm AM, the Family courts violence review—I have spoken to Richard Chisholm about his report a number of times; I met him in Parliament House, actually, to talk about the issue; the Australian Institute of Family Studies' Evaluation of the 2006 family law reforms; and the Family Law Council's Improving responses to family violence in the family law system.With respect to the member for Berowra, the Howard government did get it wrong with many of the changes. Without social research, and with a knee-jerk reaction to a minority of men's rights groups, they responded in the way they did, fettering judicial discretion and creating a legislative pathway with respect to shared parenting—and I have personal views on those issues. As a result of their changes a culture of expectation developed that it was worthwhile for children to continue regular contact with a parent, even if it meant exposing that child to abuse, neglect and family violence. Any lawyer who practised regularly in this jurisdiction would know that that was the case. Time and again, parents felt compelled to agree to contact arrangements for fear of running foul of the 'friendly parent provision' imposed by the 2006 changes.

The task confronting any court when allegations of family violence or abuse are made is daunting—even more so in the pressure cooker of an interim hearing, usually held shortly after separation, often without the benefit of a detailed affidavit or cross-examination and many times without a detailed welfare report indicating what the children's wishes are, what arrangements were undertaken before separation and what recommendations psychologists or social workers might have made. The ramifications of terminating all contact between a parent and child are many and long-term. It should only be done as a last resort.

The balance needs to be struck in favour of protecting children, and that is where the previous legislation failed. It is restored by this legislation. Now, for the first time, the UN Convention on the Rights of the Child compelling the court to consider the convention in deciding matters concerning children is included in the legislation. That is important in recognising the rights of children. It is not about the parents' rights; it is about the rights of the children.

The bill elevates the primary consideration of protecting a child from abuse, neglect and family violence over the benefit of having a meaningful relationship with a parent where there is an inconsistency. The bill broadens the definition of family violence to what I think is in tune with community expectations. The member for Berowra would have us believe that it is only family violence if, indeed, it is defined as family violence. In fact family violence, as people know, occurs in many ways. That includes not just physical assault but dominating, controlling behaviours; stalking; friendship isolation; familial isolation; emotional manipulation; financial abuse; harassment; and cultural isolation. We need to protect children from these types of activities. We need to protect spouses as well, if we can.

Expanding the definition of abuse and family violence and imposing on court personnel and independent children's lawyers the obligation to report on child abuse to state and territory departments of child safety is a worthy thing. 'Abuse' should include serious psychological harm and exposure to family violence. The bill imposes on those involved in family disputes to make the protection of children the paramount consideration. Prioritising child protection is absolutely crucial.

As I have said, the bill overcomes the reluctance of many parents and their lawyers to report family violence for the fear of being considered an 'unfriendly parent'. That provision is found in the relevant sections of the Family Law Act where a court will consider them. They are part of what I would call the 'additional considerations'. Often I have seen parents struggle with this provision. Lawyers, judges and federal magistrates also really wrestle with this provision. The 'friendly parent provision' is revoked by this bill, meaning children are less likely to run the risk of abuse, neglect and family violence. I believe the balance is back with this bill and, once again, the best interests of children are front and centre.

Section 4 of the Family Law Act defines abuse to be:

(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs;

Another subsection further defines abuse of a child as:

(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.

I am sure that the average person in the community thinks that abuse is far more broad than that simple definition.

The current legislation states:

"Family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

Again, this is a very narrow definition that really does not reflect community standards. Broadening the definitions will help judicial officers to consider behaviours, including patterns of behaviour, within the factual context of a case—not simply whether someone has hit them, punched them or engaged in a physical sexual assault or physical harm perpetrated by fists, a baseball bat or an implement of any description. Broadening the definition will allow a court to look at the pattern of behaviour and focuses the judge or federal magistrate on that.

The Family Law Council and the Australian Law Reform Commission have both recommended the removal of the semiobjective test of family violence so that the decision maker—for example, the court or a family dispute resolution practitioner—is required to consider the situation from the perspective of the victim. This is not something new. It is what happens when you talk about domestic violence laws at a state level—in my state of Queensland they are domestic violence laws; in other states they are apprehended violence laws. They consider what is happening from the victim's perspective: does the victim feel that he or she—and it is 'he' more often than people think—has been subject to harassment, intimidation or domestic violence or abuse? More often than not, from the victim's perspective, they feel they have.

Over many years of legal practice I have seen thousands of people—both men and women—in tears when they cannot point to a circumstance in which someone has physically assaulted them but yet feel they have been abused in other ways—like not being able to dress in the morning without the man putting the clothes out and determining they particular clothes they wore. One woman said, 'I was not allowed to shower except in his presence.' Things like that are family violence and abuse. No-one would think they were not. I have seen cases where one person stopped a woman of religious faith from going to church. She wanted to go to church. One partner may stop the other from engaging in cultural pursuits—if they came from, say, a Samoan background but could not go to any Samoan cultural events because they were really an Australian, according to the other person. I have seen dozens and dozens of cases like that. This is a terrible form of domestic violence. It is a form of stalking if there is repeated harassment by phone calls. Broadening the definition allows the court to have a better grasp of what is going on.

I heard the member for Berowra talking about getting rid of the relevant sections that deal with mandatory costs orders for false allegations. Will the repeal of section 117AB increase the number of false allegations? I think that is nonsense. There is strong support for the repeal of this from the legal profession and those who practise in family law. The courts have already considered, in the case of Claringbold and James in 2008, that section 117 is broad enough to deal with false statements, including false allegations and false denials. Indeed it is. Under section117(2A)(c), the court, in making a decision with respect to whether a cost order can be made, can look at the conduct of the parties to the proceedings in terms of their involvement in pleadings, discovery, particulars, inspections, answers to questions, admissions of fact, production of documents and similar matters. So it is broad enough already without section 117AB. This is a straw man put up by the member for Berowra—that is for sure. It is simply nonsense.

Professor Richard Chisholm, in his report,Family courts violence review, recommends the repeal of section 117AB:

… the law should try to encourage people to tell the truth without making, or appearing to make, any pre-judgment.

The New South Wales Law Society is reported as saying that the very existence of section 117AB provides clear disincentive to parties making allegations. The Family Law Council and the family law section of the Law Council of Australia highlighted similar concerns. So what the member for Berowra says is simply nonsense. He does not understand the law. It has been over 40 years since he practised in the jurisdiction. He does not know how the law has moved on. His reforms of 2006 are not to be put in some gold plated bowl that says how wonderful they are. In fact they are wrong and should never have been done in the first place. (Time expired)