Family Law Amendment Bill 2011

Introduction

On 26 May, 2011, the Family Law Bill 2011 was debated in the Senate. The contents of the debate gave an interesting insight into the political divide on issues relating to child safety, where there is domestic abuse. In context, the debate came following media reporting on the deaths of a number of children, who were the subjects of various formal and informal family dispute actions. In stark contrast, the following week the Australian media moved to encourage community outrage, after an ABC report on the mistreatment of cattle in Indonesian abattoirs. Sales of beef dropped and the government acted swiftly to ban the export of live cattle to the offending plants. The Family Law Bill continues to be discussed. One wonders how it can be, that, as a nation, we care to take immediate action to protect cows. In the case of child safety we require the receipt of years of research, months of debate and referral to a senate committee. We move quickly to make cows we are gong to eat, more comfortable. We defer taking action on violence against children.

Hansard

Unfortunately Hansard does not give a word for word account of what took place, Mon 26 May, in the Houses of Parliament. I walked away from the debate on Family Law Act Amendment 2011, with one word ringing in my ears; “But...”. Hansard does not record the use of the word “but”. Despite this, 'but' appears in speech after speech, where senators insist that “children have a right to be safe”, and qualify the statement with something other than safety and something that may lead to lack of safety. The argument that children have a right to be safe, appears in the United Nations Convention on the Rights of the Child. As Australia is a signatory to this convention, it would be in our interests to seem familiar and cooperative with its requirements.

Convention

Unicef provides a fact sheet which gives an easy to read overview of the United Nations Convention on the Rights of the Child. Article 19 of the convention states that;

Children have the right to be protected from being hurt and mistreated, physically or mentally. Governments should ensure that children are properly cared for and protect them from violence, abuse and neglect by their parents, or anyone else who looks after them. In terms of discipline, the Convention does not specify what forms of punishment parents should use. However any form of discipline involving violence is unacceptable. There are ways to discipline children that are effective in helping children learn about family and social expectations for their behaviour – ones that are non-violent, are appropriate to the child's level of development and take the best interests of the child into consideration. In most countries, laws already define what sorts of punishments are considered excessive or abusive. It is up to each government to review these laws in light of the Convention.

If our political leaders are familiar with this article in the convention, and common sense suggests a politician or her or his staff will look at it before debating related issues in the political context, the statement that “Children have a right to be safe...” is understandable. “Children have a right to be safe” signifies the idea we are obeying the convention to which we are signatory. It signifies our familiarity with the statement and the concept. It might even signify agreement with the statement.

The debate

This debate divided members along party lines. Coalition members gave speeches in which the 'but' may not have made Hansard, but was dominant. It should be noted that he 2006 Family Law changes were the result of Coalition legislative action. The Coalition might be expected to support against change, their own law. Further, in Australia 'liberal' and 'national' politics (these are the Coalition opposition party) tend toward preferring a traditional family model. This supports male authority exercised over the adult female, expecting a male breadwinner and female home worker. Weak legal and social support for abused women and their children fits the Coalition's ideological framework. It allows a measure of male dominance to exist in marriage or marriage like relationships. It also fits the conservative position in that the conservative inclines toward the traditional. If these relationships were conducted in a certain way in the past, unless there is very good reason, the conservative will insist that they continue to be done that way. One might argue that a string of child killings should be enough to urge change upon us, unless our conservatism is of more value to us than the lives of children. In the speeches of some Coalition politicians it appears that children's lives are not.

The Australian Coalition in general presented views that are contradicted by recent research, some MPs even referring to parts of research that could be made to appear supportive of the Family Law Act 2006. Opposition Whip Ms Marino began, saying that “Shared parenting reforms did not expose children to greater risk of violence and abuse...”. However she went on to say that “...neither is it fair to pretend that people are not hurt by the court decisions or that in some cases that hurt is … to the point of being life destroying.” Let's be clear, Marino is referring to death here. She is saying that “Shared parenting … did not expose children to risk of violence … in some cases they are harmed to the point of death...” This towering contradiction was repeated by other speakers. Marino was also the first of a string of opposition speakers referring to the bogey-man of false allegations.

Mr Billson referred both to 'grave concern' about the effect on children from violence, while he asserted confidence in the law of 2006. In his view what is needed is better training for professionals attached to the family court. He is not mistaken, better training is needed. However such training should not spring from law that continues to diminish claims of abuse, just in case the claims might be false. Philip Ruddock agreed that “...not every child will be safe...” and, “Where you can work it through and where a child has a continuing relationship with a parent, it is so much more positive and so much better.” This statement lines up with the false assumption that a relationship with an abusive parent is less harmful that losing contact with that parent whilst in the formative years. Relationship with the abusive parent is also likely contained in the 'broader rights' to which Ruddock appealed when he said “... the importance of ensuring that children are safe and secure but also ensuring that children's broader rights are also recognised...” Ruddock claimed that litigation in the family court is smaller in volume than it once was, and challenges the listener as to whether he or she would “...want to change that?” In this way he places clearing the court, ahead of child safety. Ruddock refers to the danger of false allegations, appealing to us that we would surely not wish to make provisions that allow false allegations? In this he, also, gives prevention of false allegations higher priority than child safety.

False allegations

The Australian Coalition appears deeply worried about the idea that women use claims of child abuse, to gain an advantage in the Family Court. Everyone knows a parent who says that false allegations were made in the Family Court, and a parent who was separated from his or her children for a time. I know a man who experienced this, and I know two women who experienced this. Anecdotal evidence, but quite powerful. However is it the scourge our Coalition politicians seen to think it is?

Dr Michael Flood (2010) wrote a paper examining this issue. In his paper, Flood refers to the idea that women routinely make false allegations as a myth, and considers it in the light of several matters of fact. The facts he has uncovered are as follows;

That the risk of violence increases at the time of separation.

Most allegations of domestic violence made in the context of Family Law proceedings are made in good faith, and with support and evidence for their claims.

Rates of false accusations of rape are very low.

Women living with domestic violence often do not take out protection orders and do so only as a last resort.

Protection orders provide an effective means of reducing women's vulnerability to domestic violence.

Flood discusses these claims and provides references for readers who wish to check their veracity. This and other similar information has been available for some time. Therefore we can conclude either that Coalition politicians disagree with or are willing to dismiss available information. The consequences of diminishing the claims of abused women can be severe. A list of dead and injured is available at the National Council for Children Post Separation web site. They number over thirty, most of whom were children. For each of these there are numerous families and perhaps hundreds of people, who will experience long term anguish. In some cases, causing suffering was the pronounced purpose of the act of violence. Both Arthur Freeman and Ramazan Acar are fathers who stated that violence against their children was motivated by a desire to hurt ex-wives. I would argue that if there is a choice between dead children, and an ex-wife getting away with a false claim, it would be better that we risk the possibility that some ex wives may get away with false claims. However in the senate debate on 26^th May, there was no mention of the killing of children for the purpose of harming ex wives. It seems that ex-wives making false claims about abuse, is deeply worrying. Ex-husbands harming or killing children to punish or hurt their mothers, is not so worrying.

Kate Ellis, Australia's current Minister for the Status of Women, should have the final word in this case. She told the senate that the government will remove “provisions that had the perverse effect of discouraging the reporting of family violence … this bill will continue to support shared care...” and “...where family violence or abuse is a concern the courts will be required to prioritise the safety of the child...” In response to Coalition insistence that the law unchanged has been doing well and that the AIFS had said that it doesn't, as it stands, put children at risk she notes that; “The Australian Institute of Family Studies and the Family Law Council say that the Family Law Act is failing to properly protect children and other family members from family violence and abuse.” There is nothing more to say. Twenty first century Australia cannot be allowed to continue being a place where family law leaves children at the hands of abusers.