Paul Scarr (Queensland, Liberal Party) Share this | Hansard source

At the outset, can I just pick up the last point Senator Polley made, which is a generous comment and certainly reflects my view: that any amendments put forward by any senator in this place with respect to this extraordinarily important bill, the Family Law Amendment Bill 2023, which will have such an impact on families and on children across this nation, should be considered very, very carefully and in a non-partisan manner. From my perspective, all of us want to see the best interests of children at the centre of these decision-making processes. That's my genuine, passionate belief, and I'm sure it is shared by senators across the chamber. Having started this process this week, let's hope that at the end of the week we can reflect on a process where all amendments, whoever they have been moved by, have been moved in good faith to enhance and improve the legislation and have been carefully considered by this Senate.

As a preliminary comment, I'd also like to put on the record my thanks to the witnesses who appeared during the one-day inquiry and to the members of the secretariat, who turned around the report in very quick order. We only had a one-day inquiry, unfortunately, but it was a very fruitful inquiry. In particular, I would like to thank those witnesses—I'm sure Senator Waters would agree; she was there when they gave their testimony—who shared their personal experiences and the difficulties they faced as they navigated the family law system, including in areas where they were subjected to awful personal circumstances, including coercion. It was quite inspirational to hear from those witnesses.

I would also like to acknowledge Senator Green, who raised issues in relation to the implementation of the Hague Convention on the Civil Aspects of International Child Abduction. The recommendation in that regard in relation to the bill is a very positive recommendation, and I'm very pleased the government has taken that on board. I compliment Senator Green in relation to her contribution in that regard.

Senator Polley raised one point that I would like to correct. I respect her perspective, but it should be remembered that it was actually the previous coalition government that referred the Family Law Act to the Australian Law Reform Commission for review. The coalition government had heard the views in the community that there were issues that needed to be addressed, and it did exactly the right thing in referring the act to the Australian Law Reform Commission for review. There was an important recommendation made by the Australian Law Reform Commission that has not been picked up in this legislation but ought to be picked up. I will speak about that shortly.

Another preliminary comment I would like to make is that we must remember that the vast majority of these cases are settled outside court. That's a great thing for the families—for the parents and for the children. Wherever possible, these matters should be decided in a non-adversarial process and agreement reached between all parties when they're going through a separation process. So, when we're considering the amendments to this bill, we need to appreciate and understand—the Law Council of Australia and various other people who made submissions were very clear on this—that the Family Law Act is perhaps a unique piece of legislation in that many Australians refer to the actual sections to work out what principles apply. They actually read the bill themselves in some cases, to work out what path they should be taking. That is perhaps unique in terms of the legislation that this place considers, but in my view these amendments need to be carefully considered, because I think there are ways in which they can be improved.

The last preliminary point I want to make is to absolutely and totally endorse the comments of Senator Waters with respect to funding for community legal organisations. Senator Waters, probably more than anyone in this place, has firsthand experience of the importance of those organisations. A continual theme through all the submissions made to the inquiry into this bill has been that it's one thing to impose obligations upon people but another thing to actually fund the community legal organisations who are going to assist in the implementation of those obligations. The two cannot be divorced. There needs to be appropriate funding for the process. In my view, it is a false economy to deny that substantial funding that's required, especially for our community legal organisations, who are assisting some of our most vulnerable Australians to navigate through this process. So I commend Senator Waters on her comments in that regard.

Given the time available, I'm going to limit my comments to the parenting framework contained in part VII of the Family Law Amendment Bill. This is the framework that deals with parenting orders and child custody orders and is perhaps of most interest to Australians. I think the bill is nearly there and that this chamber as a whole could support the bill, with a few tweaks, in its totality. So, again, I ask the government in particular to consider a number of amendments to the bill, which are put forward in good faith and in a spirit whereby we think it would actually be a very positive thing if this Senate could unanimously support the amendments to the Family Law Bill. I will move through three of those proposed amendments now.

The first is with respect to the principles and objectives clause. For those listening in the gallery or at home, the issue here is that at the moment the Family Law Act, as regards parenting, custody arrangements and orders, is extraordinarily complicated. To draw that in stark relief for people listening, I will quote from one judge, who described applying the best-interests framework—that is, in terms of making orders in relation to children in their best interests—as 'a dilemma of labyrinthine complexity to arise'. I think that means it's complicated. That person is a judge. It's complicated; I'll translate for you. Another judge, Judge Riethmuller, outlined the complexities of the pathway in an article titled 'Deciding parenting cases under part VII: 42 easy steps'. I think that underlines the position we have: it's too complicated at the moment; the considerations et cetera need to be rationalised, and we will get a better outcome in that regard.

So, the case for reform has been met, and I absolutely support the reform process. However, at the same time as the simplification is occurring, there are very important elements of the bill, in particular in relation to the principles and objectives, that reflect what I believe are community expectations around both parents. The benefit to a child—subject to safety issues and subject to domestic violence issues, of course—must be paramount. Those must be respected. But, subject to that, a number of signposts and guidance in the principles and objectives call upon the court to consider the positive impact of both parents being involved in the parenting of their children. I don't think we should remove those. I don't think we need to remove those. I think it's actually contrary to the best intentions of all of us to remove those, because parents going through this process need to be able to openly act and see what those principles and objectives are, because they will provide a signpost.

The government says those principles and objectives are too complicated. From my perspective, they're written in standard, basic English, and I think every Australian would understand them. But, at the same time as the government is saying that we need to simplify, a reference to the Convention on the Rights of the Child remains in the principles and objectives. People reading the bill are given an internet link where they can go and read the Convention on the Rights of the Child, which covers a whole range of matters. On my count, there were six articles that deal with parenting orders out of approximately 30. On the one hand, the government says, 'We want to simplify it,' but, on the other hand, in the principles and objectives people are referred to the UN Convention on the Rights of the Child, which, to be frank, is a piece of international legalese. I can't imagine your average parent who doesn't have a legal background actually understanding a lot of the concepts contained in that convention. Absolutely, simplify it, but in my view, the government is removing the simplest parts. I genuinely think that's counterproductive, and I think we could come to a better solution in that regard.

The second point on parenting orders with respect to children is something I talked about in my earlier contribution. One of the things the court needs to consider is a slimmed-down number of best-interests tests, which is appropriate, provided they're amended to take into account past family violence, abuse and neglect. The government is proposing to amend one of those best-interests tests this way. At the moment, the act reads, 'the benefit to the child of being able to have a meaningful relationship with the child's parents.' The government is proposing to take out the word 'meaningful'. Why take out the word 'meaningful'? The government says, 'This will simplify it.' But the point is that the very act of taking out that word, 'meaningful', sends the wrong message to the community. A strong theme that has come through all the contributions on this debate is that this process is as much about sending a message to the wider community as it is about the legal drafting itself. The Law Council of Australia has said, 'Keep the phrase "meaningful relationship". That phrase has been the subject of case law over many years.' The experts from the Law Council of Australia—the specific state jurisdictions of family law practitioners—are saying keep the word 'meaningful'. We know what that phrase means. It actually assists them to advise their clients and assist parents to come to resolutions outside the court process. That's what the legal practitioners are saying. Is the reform process going to be derailed over one adjective? Surely not. Keep that word, 'meaningful', in that best-interests test. There's no reason not to. I know the Attorney can be obstinate at times—we all can. I can be; everyone can be. But there is no reason why we should not keep that adjective, 'meaningful'. There's no reason at all. It sends the wrong message.

The third point I will to make in relation to parenting orders is on the case that's been made in relation to reform of the so-called equal shared parenting presumption. Many parents, when they're discussing these issues, equate it to mean 'equal time'. It was never intended to mean that, but that confusion is there and needs to be addressed. The Australian Law Reform Commission proposed that there be a presumption, always subject to safety issues and the best interests of the child, that there should be a prima facie assumption in the initial stages of joint decision-making between parents about major long-term issues. They would include things such as education, religion and health. That's something the Australian Law Reform Commission suggested in terms of the drafting. If you're going to get rid of the presumption of 'equal shared parenting responsibility', you need to replace it with something else. Their recommendation was to replace it with 'joint decision-making about major long-term issues'. Again that makes absolute sense in terms of the drafting.

I want to conclude my contribution by quoting Professor Bruce Smyth, an expert in these matters—more expert than Senator Scarr. He said:

Children themselves are clear on the importance of having at least a safe and loving home after parental separation—or ideally two such homes.

He and family law practitioners in Queensland, Western Australia and the Hunter Valley all suggested—and recommended—that there is substantial merit in adopting the Australian Law Reform Commission's suggestion. I truly hope that the government takes those comments as they were intended, as they were made in good faith to enhance the bills.