Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The family law system has a fundamental impact on the lives of many Australians. The Government has committed to ensuring it is safer, more accessible, simpler to use, and delivers justice and fairness for all Australian families.

For too long the Family Law Act 1975 (Family Law Act) has been a source of confusion. It has inhibited separated families' ability to put into practice post-separation parenting arrangements that align with this most important principle: the best interests of children must come first.

There is ample evidence demonstrating that key provisions in the Family Law Act have themselves become a barrier to achieving safe and fair outcomes. This Bill takes some critically important steps to address this by:

The Bill addresses other issues important to the safety and wellbeing of children, including:

The Bill also amends the Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act) to support a timely review of the structural changes made to the court in the last term of government to ensure the courts are operating in a manner which protects the safety of families and provides an efficient resolution of family law matters.

The proposed reforms have not been developed in isolation. Of the many reviews of the family law system conducted in the last decade, we have the benefit of insightful and informed recommendations made by the Australian Law Reform Commission's (ALRC's) 2019 report Family Law for the Future: An Inquiry into the Family Law System (Report 135). We have also considered the recommendations of the Joint Select Committee on Australia's Family Law System which delivered its final report in November 2021.

Changing the framework for making parenting orders

The Bill makes significant changes to Part VII of the Family Law Act, which relates to children.

Parenting arrangements after a separation are often negotiated as parents struggle with loss, grief and financial stress at the end of a relationship.

Despite these challenges, most separated Australian couples are able to settle their own arrangements outside of the family law system, and co-parent successfully. Research by the Australian Institute of Family Studies has found that only 3% of separating families have their parenting arrangements determined by a court.[ ] The parenting provisions in the Family Law Act must therefore serve as a guide to those negotiating their own arrangements, as well as judicial decision-makers.

The complex interaction between Part VII's multiple objects, principles and factors is confusing. Convoluted and complex decision-making pathways, that must be navigated through an understanding of legislation and case law, add significantly to the time and cost of any parenting matter.

The Bill makes a number of amendments to make it easier to understand the issues to be considered when determining parenting arrangements in the best interests of the child.

The existing objects and principles of Part VII, in section 60B, are often misunderstood to be legally binding, and contain significant overlap with the best interests factors. The Bill replaces these with a much shorter objects clause to make clear that children's best interests are the most important consideration in making decisions about parenting arrangements, including their safety. Australia's obligations under the United Nations Convention on the Rights of the Child are also reflected in the new objects clause.

The Bill streamlines the complex list of factors to be considered when determining the best interests of a child. The changes mean the court will now simply consider six 'best interests' factors to decide what the best parenting arrangements for each child are. The factors include the child's safety, the benefit of having relationships with both parents, any views expressed by the child and their developmental, psychological, emotional and cultural needs.

These six factors are complemented by additional specific consideration of opportunities for Aboriginal and Torres Strait Islander children to maintain a connection with family, community, culture, country and language.

The Bill removes the presumption of equal shared parental responsibility and the associated provision that requires a court to consider certain time arrangements for children to spend with each parent.

It also codifies existing case law about the reconsideration of parenting orders, making it clear that it must be in the best interests of the child, and a significant change in circumstances must have occurred, for an existing parenting order to be reconsidered.

These changes are essential if the very complicated existing framework is to be made more workable.

Repealing the presumption of equal shared parental responsibility

The Government recognises that for most children, it is strongly in their best interests to have a loving and nurturing relationship with both parents after separation. The simplified list of best interest factors includes consideration of the benefits to children of having a relationship with each of their parents, where it is safe to do so.

However, it is necessary to amend the law so it is clear that there is not, nor has there ever been, an entitlement for parents to spend equal time with their child after separation. Multiple inquiries into the family law system have recognised that the equal shared parental responsibility provisions, in combination with the associated requirement for the court to consider certain care time arrangements, have been widely misunderstood as creating this right.

As Justice O'Brien observed in 2010: A law that cannot be understood by the people affected by it—or worse still lends itself to being misunderstood—is a bad law. That is particularly so when we are talking about a law which affects families and children.[ ]

Removal of these provisions will ensure that the law more clearly identifies that children's needs and interests should be the focus. It is a sad reality that concerns about family violence, health issues or substance abuse are present in a very large number of family law cases. As the Family Law Council's submission to the consultation process on the exposure draft of the Bill observed, a 'legislative framework that attempts to influence decision making towards a particular outcome is inappropriate, especially having regard to the high levels of concerns about child safety, family violence and other issues that can negatively influence child and adult wellbeing among the families that turn to the family law system for assistance with parenting arrangements.'

In relation to parenting arrangements agreed out of court or by consent, these provisions have been found to cause parties to agree to unsafe arrangements, because they believe the law requires them to do so. Many stakeholders consulted on the Bill have also expressed concern that continuing requirements for parents to share decision-making for their children have provided avenues for high levels of conflict and coercive control.

Where parents can safely consult on major long-term issues for their children, the legislation will encourage parents to do so and to focus on outcomes that will be in the best interests of the children. The legislation will make clear the orders that can be formulated in relation to parental decision making on major long-term issues.

While these changes are significant, it is important to note that the proposed amendments will not limit the court's power to make orders about parental responsibility or shared time. They will, however, implement a safer and simpler framework for making parenting orders.

Enforcement of child-related orders

Non-compliance with parenting orders is a common issue, causing distress for many families. The ALRC and Joint Select Committee both identified challenges with the current law.

The Bill simplifies the operation of the existing provisions for enforcing parenting orders, helping parents understand the importance of complying with parenting orders unless there is a reasonable excuse not to. It will restructure the current Division 13A of Part VII of the Family Law Act into four clearer parts.

The Bill will make the consequences of non-compliance with parenting orders clearer and easier for court users to understand and for the courts to apply.

The proposed provisions have been informed by Professor Richard Chisholm AM's suggestions, which were endorsed by the ALRC in its 2019 report.

The redraft of the existing Division 13A, while making it simpler to navigate, does not significantly change the underlying principles of any existing compliance and enforcement provisions. Where there is no reasonable excuse for failing to allow contact between a child and a parent, the courts will still have a range of options for addressing issues of non-compliance with parenting orders.

In instances of non-compliance courts will still be able to vary a parenting order, provide for make-up time for missed visits, compensate parties for expenses related to missed visitations, and in more serious circumstances, impose a fine or imprisonment. The Bill removes a rarely used option to impose a Community Service Order in cases of contravention.

The Bill also amends the FCFCOA Act to allow for registrars of both Divisions of the court to be delegated the power to make a further parenting order for make-up time where there has been non-compliance with a parenting order.

Definition of a member of the family and relative

The Albanese Government recognises the significance of family and kinship within this country's proud Aboriginal and Torres Strait Islander cultures. To be more inclusive of these concepts, the Bill will amend the Family Law Act's existing definitions to use language to reflect the diversity of meanings for family and relatives which Aboriginal and Torres Strait Islander peoples may have.

Independent Children's Lawyers

The Bill takes important steps to improve the ability for a child's view to be considered in family law proceedings.

The Family Law Act currently provides for Independent Children's Lawyers, or ICLs, to be appointed by the court to represent a child's best interests, particularly in cases which involve abuse, high levels of conflict and complexity.

ICLs must form an independent view, based on the evidence available, of what is in the best interests of the child. ICLs are obliged to consider the views of the child, if they are expressed, and put these fully before the court with their own, independent, perspective about what arrangements or decisions are in the child's best interests. While many ICLs will meet with the child to determine their views, there is currently no legal obligation to do so unless ordered by a Judge.

The Bill introduces amendments to require the ICL to meet with the child and provide the child with the opportunity to express any view about the matters to which the proceedings relate. This requirement will apply in all cases where an ICL is appointed, including parenting matters, welfare matters or where ICLs are appointed for children in Hague matters.

It is important to recognise that there will be circumstances where it would be inappropriate for a child to meet with an ICL or express a view. An ICL is not required to meet with the child if the child is under 5 years of age, or the child does not wish to meet with an ICL or express their views.

Further, to ensure the safety or wellbeing of the child, the Bill provides that there may be exceptional circumstances when an ICL is not required to meet with the child or seek their views. These circumstances include, but are not limited to, if the meeting with the ICL would expose the child to the risk of physical or psychological harm that cannot be safely managed, or would have a significant adverse effect on the wellbeing of the child.

These amendments support children's rights under Article 12 of the United Nations Convention on the Rights of the Child, while safeguarding their safety and wellbeing.

The Bill amends the Family Law Act to expressly permit the appointment of ICLs in matters under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) and remove the requirement that there be 'exceptional circumstances' for the court to appoint an ICL in these matters. This change will bring judicial discretion to appoint ICLs in Hague Convention matters in line with other family law matters, so that ICLs can be appointed by the court to represent the child's best interests where appropriate, rather than only in exceptional circumstances.

By enhancing the ability for a child's view to be considered in Hague Convention cases, this Bill will contribute to improved safety of the implementation of the Hague Convention.

Harmful proceedings orders

Many victim-survivors of family violence, and their children, suffer the effects of continued abuse from their perpetrators through misuse of legal processes.

To address a gap in the current law, the Bill introduces the capacity for the court to restrain a party from repeated litigation by making a harmful proceedings order. The focus of the measure is on the protection of the other party and any children from harm, including the detrimental effect on the other party's capacity to care for a child.

Once this order is in place, any further proposed proceedings would first be assessed by the court to ensure that matters that are vexatious, frivolous or unlikely to be successful are not being heard. There will be no erosion of the principles of procedural fairness—applicants will have the opportunity to make the case for the particular matter they wish to bring before the court.

Overarching purpose of family law practice and procedure

The ALRC found that prolonged family law proceedings have negative consequences for parents and children.

This Bill will improve case management and procedure by broadening the overarching purpose of family law practice and procedure that exists in theFCFCOA Act. This overarching purpose provision is aimed at encouraging parties to actively cooperate and negotiate with each other to resolve disputes, with the best interests of children in mind.

The Bill creates a duty on parties and their legal representatives to resolve disputes in a way that ensures the safety of families and children, promotes the best interests of the child, and is as inexpensive and efficient as possible.

There will be cost consequences for parties or their lawyers if they have been found to not be acting in compliance with the overarching purpose. Lawyers will not be able to pass these costs onto their clients.

Protecting family law information

The Bill will also update the Family Law Act to clarify restrictions on communicating identifiable information arising in family law proceedings. Consistent with the ALRC report, this measure will assist those within the family law system, including service providers, government agencies, professionals and parties, by providing greater certainty about the circumstances in which identifiable information can be shared. This measure also ensures that the privacy of those involved in family law matters continues to be protected.

Standards and requirements for family report writers

It is important that courts have the best possible evidence before them when considering what parenting orders to make. A family report is often the only independent evidence available to assist the court. It is crucial that families, the court and all those involved in the family law system can have confidence that every family report has been prepared by a professional with the skills and knowledge required to undertake this important task.

The Bill will introduce the ability to establish standards and requirements to be met by family report writers. Establishing a power for Government to prescribe standards and requirements for these professionals is the first step in addressing concerns expressed by stakeholders across successive reports and public inquiries into the family law system about the competency and accountability of family report writers. Any standards or requirements will be outlined in regulations to be developed following further consultation with stakeholders.

Amendments to the Federal Circuit and Family Court of Australia Act

The Government is committed to the ongoing improvement of Australia's federal courts, and believes that a well-functioning court system is essential to the effective implementation of these reforms.

The Bill amends the FCFCOA Act to bring forward the review of the structural change that merged the Family Court of Australia with the Federal Circuit Court. It is important that such a monumental change to the family law system is reviewed in a timely manner to ensure the new court structure is providing families with a safe, accessible and efficient resolution of their family law disputes.

The Bill expressly clarifies that the appointment of a judge of the Family Court of a State to Division 1 of the Court is permitted under the Federal Circuit and Family Court of Australia.

Conclusion

In closing, the Government is making these changes to the Family Law Act to make it safer and simpler to use, and to provide clarity to the community; guided by recommendations of detailed, insightful and researched reviews into the family law system.

In proposing these measures, the Government thanks all who have contributed to relevant inquiries and the consultation process on this Bill.

This Bill will return the best interests of the child as the central focus of the family law system and will simplify what has become an overly complex and confusing framework for making parenting arrangements.