Jason Wood (La Trobe, Liberal Party, Shadow Minister for Community Safety, Migrant Services and Multicultural Affairs) Share this | Hansard source

I rise to speak on the Family Law Amendment Bill 2023. There are few things in the Commonwealth Attorney-General's portfolio that have more direct impact on Australians than family law. Every year, tens of thousands of Australians will find themselves going through the pain and sadness of separation, and, in a small proportion of these cases, disputes will be decided by a judge in Australia's family law courts. As a nation, we should aim for a system that resolves those disputes as quickly and cleanly as possible and, where children are involved, we should at all times prioritise their best interests.

Many parts of this bill are moved by good intentions, and we join with the government in recognising that many of the issues in this bill seek to address problems in need of a solution. And yet in too many places the proposals put forward by the government in this bill do not align with those problems. They go beyond recommendations made by previous reviews, are not supported by professionals, have unintended consequences or have not been road tested in communities on the ground. The coalition's very deep concern is that, although we join with the government in recognising the problems, the solutions in this bill are untested and may actually make things worse for Australian families. That is something that we, as legislators, should be very cautious about, particularly when we're dealing with a system that is meant to guide them through some of the most important and difficult parts of their lives.

Schedule 1 of this bill deals with the parenting framework in the Family Law Act. The most significant part of this schedule would repeal the presumption of equal shared parental responsibility that applies when courts make parenting orders. The changes which introduced that presumption were one of the achievements of the Howard era. Prior to 2003 there were widespread concerns across the Australian community about contact and residency issues for children following marriage and relationship breakdowns. There was a widespread sense that many separated parents felt excluded from their children's lives following separation. Often, this turned the debate away from the benefits for children of a positive and caring relationship with both parents to all the arguments about why equal time will or will not work. This was against the backdrop of the inquiry commissioned by former prime minister Howard into the family law system, chaired by Kay Hull AO, which resulted in the landmark Every picture tells a story report. That report was remarkable in that its recommendations were unanimous and bipartisan. A rollcall of past Labor luminaries—Julia Irwin, the Hon. Graham Edwards, Jennie George AO, Hon. Roger Price and Harry Quick—joined with the coalition in recommending a rebuttable presumption of equal shared parental responsibility.

Those recommendations were given effect by the Family Law Amendment (Shared Parental Responsibility) Act 2006. Among other things, those reforms said that courts must apply the presumption that it's in the best interests of a child for there to be equal shared parental responsibility. Importantly, the presumption does not apply in circumstances where there is abuse or family violence. And it is not a presumption that parenting orders should allocate time to parents on a 50 per cent basis. Rather, it's about the shared responsibility that parents have in decision-making for their children after separation.

The 2006 reforms established important guardrails for courts making parental orders, but many of those guardrails would now be removed by Labor's reforms in a way that goes beyond what the evidence supports. We recognise that the law needs to keep pace with changes in society and that, where there is room for improvement, we should improve it. That is why the former coalition government initiated an ALRC inquiry into the family law system, the report of which was handed down in March 2019. The report said:

The ALRC supports the idea that a presumption of shared parental responsibility serves as a good starting point for negotiations between parents and recommends that the concept be retained.

The ALRC agreed 'in principle with the existing exceptions to that presumption'; however, it noted that, in practice, 'equal shared parental responsibility' had often been conflated with equal time with the children, and it recommended the provision be co-located 'with the provision creating the presumption'. Labor's amendments go much further than has been recommended. Labor proposes repealing the presumption entirely.

Many across the legal profession have raised concerns. It is worth noting that the Attorney-General's consultation on the exposure draft of this bill did not ask whether the presumption should be retained. It missed the fundamental question. Instead, it asked whether its changes would make it easier to explain the law and whether, with the removal of the presumption of equal shared parental responsibility, certain other provisions should be retained. It treated the removal of the presumption as a given. Yet, despite this skewed and one-sided approach, despite this never being asked, parts of the profession have been ringing alarm bells.

The Family Law Practitioners Association of Western Australian supported 'a change in labelling for the reasons identified by the ALRC'. The Hunter Valley Family Law Practitioners Association submitted that legislation should contain a presumption of the kind recommended by the ALRC. The Family Law Practitioners Association of Queensland said that the legislation removed a 'presently known pathway' and questioned whether more cases would be 'initiated on the question of parental responsibility alone'. The Law Council of Australia acknowledged the divergence of views among the profession. Among its constituent body, some said the removal of the presumption would make it more difficult to explain the law, could increase litigation and costs incurred by parties, would discourage parents from attempting to consult with each other on decisions relating to the welfare of the child, and put Australia out of step with international peers. Such a significant divergence of views should give any sensible legislator pause for thought.

There is much more to be said about schedule 1 and particularly about how courts determine what is in the best interests of the child, but, in the interests of time, I will turn to other schedules. Schedule 2 is about the enforcement of child-related orders. The underlying purpose is to simplify a complex scheme. We agree it should be simplified. We think changes to the scheme should reduce costs and enhance compliance. But it remains to be seen whether schedule 2 will do this. The ACT Bar Association said:

While it is agreed that the current provisions in Division 13A are a complex mess and should be simplified, the ACT BA does not consider that the proposed changes would make the division easier to understand. They are, instead, a different complex mess … ACT BA submits that the provisions should be reconsidered and consultation with the profession should occur before that reconsideration.

Again, this feedback should give legislators pause for thought.

Schedule 3 of the bill extends the definition of a relative for Aboriginal and Torres Strait Islander children to include anyone who's considered a relative in that child's culture. We support this in principle, but the practical implications have not been fully considered. For example, it means that family violence includes violence amongst anyone who falls within the extended definition. It may be that the obligation to notify the court about family violence now applies to a much wider group. It is possible that people who are not involved in the court case at all could have their medical and police records subpoenaed. It may be that none of these are bad outcomes, but we just don't know how it would play out for the Aboriginal and Torres Strait Islander children and communities. How will this provision affect parenting orders in Palm Island and Alice Springs? Is there any interplay with the child protection system? These issues need to be tested with communities on the grounds.

Schedule 4 of the bill deals with independent children's lawyers and would establish a requirement to meet with children over the age of five, unless there are exceptional circumstances. However, as with other parts of this bill, it must be road tested. How will it affect the work of independent children's lawyers in remote and rural areas? How does a child communicate that they do not want to meet—

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