Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I rise to speak on the Family Law Amendment Bill 2024. As the shadow Attorney-General has observed, there are few topics in the Attorney-General's portfolio which touch more directly on the lives of ordinary Australians than family law. Every year thousands of Australians will find themselves going through the pain and sadness of separation and in a small proportion of those cases disputes will be decided by a judge in Australia's family law courts. As we have said before, we should aim for a system that resolves those disputes as quickly and cleanly as possible. Where children are involved, we should, at all times, prioritise their best interests.

We in this place need to be cognisant that there are many couples across this country who will go through separation processes without going through the courts. In the debates on this topic last year, the shadow Attorney-General spoke about separating couples who are making decisions in the shadow of the law, and, on this side of the chamber, we take that shadow of the law very seriously. We know not every case is decided by a judge. We know that not every person going through one of the hardest times in their life will be able to afford a lawyer. We know well-intended changes can backfire, and we know that mounting costs and delays can entrench and inflame the hurt that comes with a bad separation. So our approach to this bill is sober and it is cautious. There are parts of this bill where we welcome the concession the government has made to orthodoxy and common sense and there are parts where we have questions.

In many places, we agree about some of the problems this bill tries to address and the general intent of what the government is trying to do. But we need to the understand impacts on the ground and impacts on families. Do these changes work? Do they make things better for Australian families going through the pain and sadness of separation? Do they make things easier or do they add complexity and delay? We make no apologies for being cautious about these issues. We have seen how cynical the government has been in this area in the past. We saw how last year the government was preparing to ram through a surprise amendment, laying the pathway to demerging the family courts. They were seeking to undo one of the most successful measures in family law in the last 10 years, which has made a measurable difference in the family law system, reducing the pressure on tens of thousands of families.

We saw just last year how Labor was prepared to disregard the expert advice of the Australian Law Reform Commission and rewrite critical provisions in the Family Law Act to erase the decades of bipartisanship and pragmatism that underpinned parenting orders in our country. We saw Labor was prepared to drastically undermine and rewrite what it means to make decisions in the best interest of the child. We saw how Labor sought to repeal a requirement that a court consider the benefits of a meaningful relationship with the child's parent and other significant people in the child's life where it would be safe to do so. Labor said the courts just needed to consider the 'benefits' of a relationship; they described the change as 'minor'. On this side of House we take a more cautious approach. We are not satisfied that removing the requirement that a relationship be meaningful is a minor change.

Similarly, we think caution is the right approach to this bill. This bill has five schedules and deals with a range of issues in each schedule, but, in the interests of time, I will touch on just a few key points. The first schedule in the bill deals with how the courts approach property settlement for separating couples. The government's stated intention here is to codify existing common law principles that have been worked out through the case law but are not in the act. We know the family courts have broad powers to deal with property settlements. We know that family courts routinely deal with the financial impacts of domestic and family violence when making property settlement orders. For both married and de facto couples, they take into account:

… any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account …

There is a line of cases that establish a type of claim called a Kennon claim, which allows a court to adjust a property settlement where: one party has demonstrated violent conduct towards another; the conduct had a discernible impact on the other party; and the contributions of the affected party to the property pool were made substantially more difficult due to the violent conduct. So there is existing law allowing for the family courts to deal with the effects of family violence in property settlements, but it is not in the act. For those who are going through a separation without appearing in court, it will not be immediately apparent how the court would deal with those issues. There is widespread agreement that this is a matter needing to be addressed. Senator Henderson, when she was the member Corangamite, recommended that this be addressed.

The extensive joint select committee inquiry that was chaired by Kevin Andrews, the former member for Menzies, with Senator Hanson as deputy chair, made clear recommendations that the Family Law Act should better reflect the impact of family violence on property settlements. So there is broad agreement on the issue. In fact, the coalition started consultation on this issue before we left office. The question is about the solution. The government has made it clear it intends to codify the existing law. So do the provisions of schedule 1 merely codify the existing law, or are the effects more far reaching? Are there unintended consequences? It is not just the coalition asking these questions. In relation to the exposure draft of the bill, the Australian Bar Association said it understood the intention was to incorporate the approach set out in the case law. However it also said:

In so doing it is important to ensure that the codification process does not result in unintended changes to the those principles or provide scope for argument about whether and what changes were intended to be made.

This is a point well made by the Australian Bar Association, and there are legitimate questions here that are appropriate for this chamber to explore.

Schedule 1 of the bill also sets out express provisions which allow the courts to make orders about family pets as part of a property settlement. It may be surprising to some who are not familiar with the field, but it is a genuine issue that courts deal with in family law cases. On occasion parties will be involved in lengthy disputes about pets, and we know that on occasion these disputes can be difficult for all involved. As with other forms of property, courts have broad discretions to deal with pets and will be influenced by a range of factors. For instance, courts will consider the best interests of the child in relation to the arrangements for a pet in cases involving children. So, at first blush, including provisions that set out the principles courts will apply to deal with pets is not objectionable. But it was not part of the exposure draft process for this bill, so we will welcome a sensible exploration of whether the provisions work as intended.

The second part of schedule 1 that is worth touching on briefly is about the principles that courts apply in property settlements. This is an area where Labor has, to its credit, made significant concessions and moved back towards a more sensible approach. I say 'back' towards a sensible approach because this was an issue first canvassed a year ago as part of the exposure draft process. In that exposure draft process, there were notable omissions. There was no mention of the best interests of the child, for instance, or of making orders that safeguard children, as opposed to parties, from the impacts of abuse, neglect or family violence. So we cautiously welcome the government's decision to take a different approach and instead apply the principles that govern child related proceedings—principles which have stood as good law since 2006—so that they will also apply to property settlements.

The second schedule in this bill is about establishing a framework to regulate children's contact services. These services have existed as part of the family law system since the 1990s and provide a location where children can maintain contact with parents or family under supervised arrangements. However, these services do not currently have to meet consistent quality, safety and operating standards. Both the Australian Law Reform Commission and the joint select committee, chaired by Kevin Andrews, recommended establishing a regulatory regime that would allow these services to be accredited, and the coalition accepted that recommendation. We agreed that children's contact services should be subject to accreditation rules but reserved our position in relation to the criminal offences for services that operate unaccredited. Therefore, in principle, schedule 2 of the bill accords with the coalition's policy position, save in respect of criminal offences.

Amongst other things, schedule 3 includes a range of provisions dealing with protected confidences. These are 'communications made in the course of professional confidential relationships'. In practical terms, we're talking about medical records, psychological and psychiatric counselling notes, and the like. On occasion, these types of materials can make their way into evidence, where there is limited or no probative value for the court. The coalition's longstanding position has been that there must be an appropriate balance between protecting sensitive medical and other records from going into evidence while also recognising the importance of parties being able to rely on relevant subpoena material and ensure that decision-makers have sufficient evidence before them to inform their decision. The shadow Attorney-General has said this publicly on more than one occasion. This is the government's second attempt at legislating a protected confidences regime. The first attempt was withdrawn at the exposure draft stage after strong feedback from the legal community that it was unworkable. It is appropriate that this version is also scrutinised to ensure that it is fit for purpose.

Briefly, the fourth schedule includes general provisions that repeal and replace the existing costs regime in the Family Law Act, deal with rulemaking by state family-law courts and value superannuation benefits. The fifth schedule sets out a review mechanism. There are a number of complex questions raised by the headline issues in this bill. As I mentioned, there are other changes to the bill which I have not spoken to now but which will be equally worthy of an in-depth consideration through a committee inquiry because we know the potential impact of these sorts of provisions on Australian families.

As I said at the outset, the coalition agrees about many of the problems and issues this bill seeks to address. We welcome those parts of the bill, in particular, where Labor has built on the work the coalition commenced in government or has adopted positions which align with the coalition's position. The appropriate way forward is to look at these measures carefully so that we understand their impact on families before committing them to law. We will continue to be sensible, cautious, sensitive and pragmatic in these areas. I thank the House.

Debate adjourned.