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Tuesday, 22 November 2011
Page: 9231


Senator HUMPHRIES (Australian Capital Territory) (21:25): I am very pleased to contribute to this debate on the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, such as my opportunity will be, given that the debate is to be truncated by the guillotine. Like Senator Fisher, I was a participant in the inquiry by the Senate Legal and Constitutional Affairs Legislation Committee into this legislation. I think that the legislation represents a very significant piece of change to the law. Like Senator Fisher I hesitate to call it reform, although I have to acknowledge that some parts of the legislation are valuable, do improve the state of the law and do make it easy to use for those people who require access to the Family Court. I echo the concerns of colleagues on this side of the chamber in this debate: significant changes in the law will be enacted by the Senate tonight in a shortened debate. We will not have time to consider amendments put forward by the Greens and by the coalition. We will not have key opportunities to consider issues in the legislation which are critical and which have been extensively debated in the public arena and in specialist circles and which were subject to intense debate before the Legal and Constitutional Affairs Committee or to consider issues around which there is a rich vein that the Senate ought to be explore. We will not deal with them tonight except by a simple vote on the floor of the Senate.

In her contribution, Senator Wright advocated for her amendments. Maybe she has put forward, on behalf of the Greens, some wonderful amendments to this legislation. I am afraid we will not get the chance to find out, because Senator Wright and her colleagues in the Greens have joined with the Labor Party to ensure that there will not be a committee stage on this bill. We will not have a chance to debate the amendments that the Greens are putting forward, wonderful though they might be.

I ask senators to consider what we are dealing with tonight. These amendments, in effect, go to the framework of family law in this country. The Family Law Act 1975 was a seismic change in the landscape with respect to personal relationships in this country. It was very significant legislation. We can all have different views about this, but it was undoubtedly an iconic piece of law reform. Tonight, we are dealing with that legacy. We are dealing with that great change in the law and the consequences and the developments that we have dealt with in the succeeding 35 or so years. But we are dealing with it tonight in an entirely unsatisfactory way. We are going to rush this through the Senate. We have important amendments to consider, but we are going to rush this through the Senate because of the deal that has been done between the Australian Labor Party and the Australian Greens.

I wonder what the ghosts of people like Lionel Murphy, Lionel Bowen, Bob Ellicott and others who were involved with those great debates would think, as they look down on this debate, about the way the Senate is dealing with that legacy legislation and the changes we are making to it, supposedly to bring it into contemporary use and to address the needs of 21st-century Australia. What would they make of it if they saw this debate going on? I do not think they would think very much of it, but that is the way it is being handled tonight.

I will address some of the issues in this legislation and point out what I believe would be some of the advantages were the Senate to adopt the amendments put forward by the coalition. I want to affirm, though, that the coalition very much values the essential elements of the legislation as it now stands and believes that our amendments underpin those important values—values that were described in the 2006 amendments moved by the then Attorney-General Philip Ruddock as the shared parenting reforms. We stand by a central feature of that legislation, which was that the paramount consideration of the courts was the best interests of the child when it came to issues relating to the care and maintenance of that child. We stand by the presumption, displaced only on substantial and exceptional grounds—for example, on the basis of what is in the best interests of the child—that there should be equal shared parental respon¬≠sibility in the raising of a child and in the direction made by parents in the course of a child's life. We stand by the recognition in the law—again, I emphasise, subject to a child not being exposed to harm or having its interests otherwise detracted from—of the benefit to a child of having a meaningful relationship with both of its parents. Those principles are in the legislation. They have been there for some time. The level of emphasis placed on those principles has varied from time to time, but those values are core to the way that our Family Law Act works today, and we believe on the coalition side that they ought to be retained and not detracted from.

It is fair to say that the 2006 reforms did require the court to take into account a parent's willingness to abide by those principles dealing with the behaviour of a parent and the parent's attitude towards another party to the marriage or relationship—again, subject to the child's best interests. I heard a suggestion in the course of the debate by Senator Crossin that, for example, in some way the reforms of 2006 weakened or watered down the central focus on the court making decisions that were subject to the child's best interests. That, of course, is completely untrue. The paramount consideration before the court remains what is in the child's best interests. The extent to which other considerations can apply subject to that overarching qualification is what, in a sense, the 2006 reforms and this legislation debate.

Much of the bill enacts appropriate, balanced refinements of the law, but it is the view of the coalition that some of the amendments do undermine the shared parenting principles. Accordingly, the coalition has moved amendments to protect those principles—principles which we were responsible for in the first place. I want to touch on a few of those in a few minutes given I do not have an opportunity to put these issues in the course of a committee stage debate. The issue of a friendly parent provision reflects the fact that coalition senators in the course of the inquiry believed that the bill, to some extent, undermined the principles of shared parenting by repealing those provisions in existing paragraphs 60CC(3)(c) and 60CC(4)(b), which take account of a party's willingness to facilitate another party's involvement in the child's welfare. It is hard to represent those changes as anything other than an attack on that key principle of shared parenting. We were not persuaded that parties to proceedings are not disclosing concerns about family violence or child abuse for fear of being found to be an unfriendly parent. That was not the substantial weight of the evidence before the committee, in our opinion. We consider that the provisions should be preserved as they stand now, more or less, in order to ensure that that important principle is not detracted from.

On the question of a new definition of family violence, the coalition senators who took part in the inquiry certainly endorsed the objective of giving greater recognition to the breadth of behaviours comprising family violence in our community. However, we did not consider in this inquiry that the net should be cast so wide as to capture all human behaviours, which is what the proposed definition effectively would do. Professor Richard Chisholm, a former judge of the Family Court, gave very strong evidence that there were problems with proposed new subsection 4AB(1). I note that Senator Wright quoted approvingly of the evidence given by Professor Chisholm. I hope she listened, therefore, to the suggestion that we perhaps should consider a different approach towards this particular provision than the one the government is proposing to the Senate. Professor Chisholm said that the new subsection was overinclusive and captured any behaviour that caused a family member to be fearful. I think he gave the example of a family member who rushed into a room to say: 'Fire! Fire! Get out of the house now.' That kind of behaviour would be captured as being behaviour that would cause a member of the family to be fearful, even though it obviously is not appropriate to characterise that as something which could be called family violence. Coalition senators believe that such a provision undermines the objective of the bill as it makes no allowance for the intent of the party giving rise to this 'fear'. Professor Chisholm proposed an alternative provision, which I would commend to the Senate. We will not have a chance to debate those sorts of provisions because the debate has been truncated.

Other senators, including Senator Mason, have made reference to the absolutely preposterous proposal to remove section 117AB of the legislation that allows the Family Court to make an order for costs—a rare thing in the Family Court—where a party has deliberately come forward and knowingly made false allegations of abuse and family violence in the course of Family Court proceedings. We are not talking about allegations which are made which cannot be substantiated on the balance of probabilities. We are not talking about claims that are contested before the court which the court considers in all the circumstances to be made out or not to be made out. We are talking about a finding by the court that a party to the proceedings has deliberately set out to mislead the court by making false allegations of abuse or family violence. The court has the power under the present framework of the law to make an order for costs against the party making false allegations. It is preposterous that this bill proposes to take that power away from the Family Court on the basis that some people have misunderstood what that provision means or that some people have supposedly failed to make allegations that there had been violence in a relationship for fear that they might be ordered to pay costs.

Senator Wright said that there was evidence that this was a widespread problem. With great respect, that was not the evidence that was presented to the committee. The evidence was that it was rumoured to be an issue. Nobody could actually come forward to the committee and tell us that they actually had a case where it had occurred. No-one provided that evidence and the Family Court representatives themselves who came before the committee said that they did not have any evidence of such practices going on. On that basis, the government proposes to remove the capacity of the court to punish a party, in effect—not through an order to award a child to another party, not to take away from the best interests of the child, obviously—and to send the signal that deliberately false allegations should carry some consequence, should resonate through an order for costs. To suggest that that should be removed from the legislation is just outrageous. I think the government's approach to this issue is completely misconceived.

The coalition is also concerned about the timing of the commencement of the legislation. The Family Court itself expressed a preference for the substantive provisions of the bill to apply only to those applications filed after the commencement date of this legislation. Has the government done that? No, it has not. It is applying the provisions to earlier litigation, with the potential effect that parties will have to go back to the court and amend their pleadings before the court because the law changed after the proceedings had commenced. I would have thought that was quite an unsatisfactory state of affairs, but that is what the legislation the government is putting forward does. We do not have a chance to debate this issue properly, because again this amendment cannot be considered in the course of tonight's debate.

The DEPUTY PRESIDENT: Order! The time allotted for consideration of this bill and the four other bills listed on today's Order of business has now expired. The question is that this bill be now read a second time.

A quorum having been called and the bells being rung—

Senator Ian Macdonald: Joe, did you hear my question? What happens with the northern judge that you promised would be appointed to replace the retiring judge?

Senator Ludwig: That's a very interesting issue. Have you got the original documents?

Senator Ian Macdonald: I just need an answer. The retiring judge retires in five days time. Where's his replacement?

Senator Ludwig: Quite frankly, with all due respect, I don't quite trust what you say. Do you have them with you?

(Quorum formed)

Senator Ian Macdonald: On a point of order, Mr Deputy President. I raised some questions in the debate which related to Senator Ludwig. He is trying to answer them. I move:

That so much of standing orders be suspended as would prevent the Minister for Agriculture, Fisheries and Forestry (Senator Ludwig) responding to questions raised during the debate by Senator Macdonald.

Question put.

The Senate divided [21:46]

(The Deputy President—Senator Parry)

Question negatived.

The DEPUTY PRESIDENT: The question now is that the bill be read a second time.

The Senate divided. [21:50]

(The Deputy President—Senator Parry)

Question agreed to.

Bill read a second time.

The DEPUTY PRESIDENT: The question now is that amendments (1) to (6) on sheet BT208 circulated by the government be agreed to.

Government's circulated amendments

(1)   Clause 2, page 2 (table item 2), omit the table item, substitute:

2. Schedule 1

The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent.

[commencement of Schedule 1]

(2)   Schedule 1, item 17, page 7 (line 2), omit "If there is any inconsistency in", substitute "In".

[primary considerations]

(3)   Schedule 1, item 19, page 7 (lines 18 and 19), omit paragraph 60CC (3)(k), substitute:

   (k)   if a family violence order applies, or has applied, to the child or a member of the child's family—any relevant inferences that can be drawn from the order, taking into account the following:

      (i)   the nature of the order;

      (ii)   the circumstances in which the order was made;

      (iii)   any evidence admitted in proceedings for the order;

      (iv)   any findings made by the court in, or in proceedings for, the order;

      (v)   any other relevant matter;

(4)   Schedule 1, item 22, page 9 (line 21), omit "if there is any inconsistency".

(5)   Schedule 1, item 45, page 15 (line 9), omit "Subject to item 47, the", substitute "The".

(6)   Schedule 1, item 45, page 15 (line 11), omit "whether instituted before,", substitute "instituted".

Question agreed to.

The DEPUTY PRESIDENT: The question now is that amendments (1) to (3) on sheet 7150 circulated by the Australian Greens be agreed to.

Greens ' circulated amendments—

(1)   Schedule 1, item 8, page 5 (after line 4), at the end of subsection 4AB(2), add:

   ; or (k)   an act or omission by a person engaging in the behaviour mentioned in paragraphs (a) to (j) that causes a child to be exposed to the effects of the behaviour mentioned in those paragraphs.

(2)   Schedule 2, page 21 (before line 1), before item 15, insert:

14A Subsection 61C(1) (note 2)

Repeal the note.

14B Section 61DA

Repeal the section.

14C Section 61DB (heading)

Repeal the heading, substitute:

61DB Allocation of parental responsibility after interim parenting order made

(3)   Schedule 2, page 21 (after line 17), after item 17, insert:

17A Subsection 65D(1)

Omit "sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and", substitute "section".

17B Subsection 65D(2)

Omit "61DA (presumption of equal shared parental responsibility when making parenting orders) and".

Senator Ian Macdonald: Mr Deputy President, I have a point of order. I ask how under the standing orders we can possibly vote on this when I have not heard the Greens move the amendment and explain what the amendment is. I may well want to vote for it but I have had no opportunity to hear the debate. I simply ask how could we possibly have—

The DEPUTY PRESIDENT: Order! Senator Macdonald, resume your seat.

Honourable senators interjecting

The DEPUTY PRESIDENT: Order! Senator Conroy and those on my left. Senator Macdonald, you have the call and you are raising a point of order.

Senator Ian Macdonald: I was raising the point of order that we are being asked to vote on some amendments moved by the Greens. I have not heard the Greens move the amendments. I do not know what the arguments are. I fancy that I may want to vote for them but I have not heard them debated. How can I possibly vote for an amendment that I have not heard debated.

The DEPUTY PRESIDENT: There is no point of order. A resolution of the Senate was passed yesterday to orchestrate the facility of the bills to be put as they are currently being put. The question now is that amendments (1) to (3) on sheet 7150 circulated by the Australian Greens be agreed to.

Question negatived.

The DEPUTY PRESIDENT: The question now is that items (2), (3), (6), (8), (18), (20), (26) and (27), (40) and (43) of schedule 1 stand as printed.

Question agreed to.

The DEPUTY PRESIDENT: The question now is that amendment (11) on sheet 7149 circulated by the opposition be agreed to.

Opposition 's circulated amendment—

(11) Schedule 1, item 45, page 15 (lines 9 and 10), omit "items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43", substitute "items 1, 4, 5, 7, 11, 13, 17, 19, 21, 30 to 34, 37, 38, 41 and 42".

The DEPUTY PRESIDENT: The question is agreed to.

Honourable senators interjecting

Senator Ludwig: A division is required.

The DEPUTY PRESIDENT: I will go back to the previous question. A division is required. Ring the bells for one minute.

An opposition senator: This is a farce.

Senator Brandis: I have a point of order, Mr Deputy President. You have called this vote for the ayes. You asked whether a division was required. There was no voice for the noes calling for a division.

Senator Conroy: Yes, there was.

Senator Brandis: No, there was not. You then moved on. If the government, who have obviously not been following the process tonight, have made a mistake and they wish the matter to be recommitted there is a manner of doing that. But the manner of doing that is not to shout down the Presiding Officer, as government senators have been attempting to do. If they want to recommit the division they should get up and explain themselves.

The DEPUTY PRESIDENT: Thank you, Senator Brandis. There was a lot of noise in the chamber. Government senators as well as opposition senators have been making a lot of noise during all of the divisions and the reading out of what the divisions are. I am happy to give the government the benefit of the doubt and allow them to call the division because of the noes that they have called. A division has been called for; the bells are going to be rung for one minute. Clerk, have the bells been rung for one minute? No? Ring the bells for one minute.

The DEPUTY PRESIDENT: The question is that amendment (11) on sheet 7149 moved by the opposition be agreed to.

The Senate divided. [21:59]

(The Deputy President—Senator Parry)

Question negatived.

In division—

Senator Ian Macdonald: Mr Deputy President, I raise a point of order on a very serious matter of etiquette in this chamber. There are two Labor senators sitting where I normally sit. They happen to be looking through my papers.

Government senators interjecting

Senator Ian Macdonald: Mr Deputy President, this is a very, very serious matter. When we move sides in this chamber you expect that you can leave your papers on your desk and not have them looked at by members of the other party. I would ask that the matter of Senator Collins looking through my papers actually be—

Honourable senators interjecting

Senator Jacinta Collins: Put it on the record!

The DEPUTY PRESIDENT: Order! Senator Macdonald has the call, in an unusual circumstance, being out of his seat. Senator Macdonald.

Senator Ian Macdonald: I only paused then because Senator Collins was shouting at one of my colleagues. But I do raise this as a very serious matter of privilege that someone who is sitting in my seat because we have changed sides is actually looking through my papers that I left on my desk about the speeches I am going to make on the next four bills that are scheduled to be dealt with by this chamber tonight. I am very serious about senators from other parties looking through the papers of senators from the other party when they sit in their seats because of changing sides in divisions. I think I should ask that this matter actually be referred to the Privileges Committee.

Senator Lundy: Mr Deputy President, on the point of order there is absolutely no basis to the complaint that Senator Macdonald has made. I am sitting next to Senator Collins, and it is utterly false.

Opposition senators interjecting

The DEPUTY PRESIDENT: Senators on my right, order! Senator Macdonald, in relation to your point of order, I say two things. I remind all senators that the courtesy and the conduct of this Senate over numerous years is that you do observe that protocol of not reading material on desks when divisions are in progress. That is the first matter. The second matter, Senator Macdonald, is I will discuss with the President your cause and if further action needs to be taken the President can make that decision and come back to the Senate.