Bridget Archer (Bass, Liberal Party) Share this | Hansard source

Some of the earliest meetings I had after my election to the seat of Bass last year were with family law experts and practitioners about their concerns with a range of issue, including the safety of the Family Court premises in Launceston—an issue which I'm pleased to say the Attorney-General has worked with me to resolve. From those discussions and from the countless discussions with constituents caught up in the family law system, I have concerns that the system is not working as intended across a wide range of areas. Not least, there can be confusion and misunderstanding of the legislation and how it is applied, leading to unnecessary distress for those engaged in the system and not serving anyone particularly well.

What we're here to discuss today is one section of the legislation that has been cited as problematic. Section 61DA provides for a presumption of equal shared parental responsibility when making parenting orders. Although the presumption in section 61DA does not apply when there has been family violence or child abuse, it is evidently clear, from consultations with experts in this area and from what I have learned from those who have gone through the system, that this exception is not always easily applied and there are, of course, wider considerations about the best interests of children in particular.

In preparation for speaking today, I sought the opinion, amongst others, of Women's Legal Service Tasmania, who daily are negotiating the adequacy of the law in protecting children and have concerns that the equal shared parenting presumption is inconsistent with the United Nations Convention on the Rights of the Child. These international law protections include the right of the child to be heard in all matters and decisions affecting them, the right of the child to have their best interests assessed based on their own needs, and the right of the child to have their legal rights respected. Yvette from Women's Legal Service Tasmania tells me: 'We fail to prioritise the child's needs above the rights of parents when we talk about equal shared parenting rights. The very term insinuates that the rights of parents override the rights of the child. This is a very traditional and old-fashioned view of being a parent and belongs in the era when children were seen and not heard. This does not accord with contemporary best practice. Often the system and the courts, in particular, fail to ask children what they want to happen. Blindly applying any principle like ESP is dangerous. It fails to take into account the personal attributes of each and every child. All people and children are unique and have their own needs. This requires an individual assessment particular to each and every child before the court, free from the application of the imposition of the rights of others and free from the imposition of the will of other parties, including either parent.'

The Family Law Practitioners Association of Tasmania stopped short of recommending repeal but agrees that there needs to be further clarity around these sections, which I understand, from my discussions with the Attorney-General, the government is open to exploring. So often we are failing those we need to protect the most. Sadly, these sections of the act are just one piece of a complex issue with a lot of moving parts. How do we enable families to separate in the easiest, most equitable and least stressful way for all parties, especially children? More broadly, how do we create true social, economic and cultural change that finally moves the dial on family violence? I am not yet convinced that repealing this one section of the legislation will fix the challenging issues in this area or is necessarily the best approach, and I am very mindful that it could have perverse outcomes. We need wider structural, social and cultural reform, and this cannot be viewed in isolation. I understand, and I share, the member for Moreton's passion to see change, and I note that he and I are both currently engaged in separate inquiries into both family law and domestic, family and sexual violence. It is my belief that the outcomes of those inquiries should inform a way forward, and I don't believe it would be wise to pre-empt their recommendations with a single proposed change. But this issue is one of those that has been raised often, and we should remain open minded about it.

There are a great deal of divergent views on what is a highly emotive issue, and I thank those on all sides of this discussion who have reached out to share their experiences with me. I believe more could be done to assist and educate people in negotiating the family law system, and I do think it is important to be able to discuss these matters openly in this place and to find the common ground and be constructive. There should be bipartisanship in these matters in the best interests of all Australians—particularly our children. I look forward to continuing to discuss these issues and to work together for a better future for Australian families.

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