Matt O'Sullivan (WA, Liberal Party) Share this | Hansard source

I rise to speak on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. There's no doubt that matters of family law strike at the very core and heart of our society. We know that families are the very bedrock of our society. Of course, any change that we make to the family law system needs to be dealt with quite sincerely and with real care. I have no doubt about the intentions and the motives of the government in bringing forward these changes.

In the last parliament, I actually moved to establish the Joint Select Committee on Australia's Family Law System. It was an inquiry that ran over most of the term of that parliament. We heard from many witnesses. We had over 1,300 individual confidential submissions. I've got to say that what I heard in the time that I spent engaging on this issue and hearing from those witnesses was some of the most moving and challenging evidence that I've come across in all of the time—the four and a bit years—that I've been here in this place. When it comes to issues of family law, when a marriage breaks down or when partners separate, particularly when it involves children, it's probably the biggest issue that's ever occurred in someone's life. And so, when those people bring forward their personal stories, they can be very challenging.

We know that most couples are able to manage their affairs without needing to engage with the family law system, and they're able to work through their personal situation and deal with it in a way that doesn't involve the courts and doesn't involve the complication of everything that's involved. But we know that, for those that do require engagement with the family law system, it can be very complex and very costly. It goes over an extraordinary length of time. It's something that, frankly, if it can be made better, should be. So I do welcome the government bringing on the Family Law Amendment Bill.

I feel that it's a little rushed. As I said, that inquiry that we held in the last parliament ran over almost an entire term of that parliament. We hit COVID. We were able to hold a number of hearings pre COVID. We were in Queensland—in Townsville, if I recall, Rockhampton and Brisbane. Then the Prime Minister had the address to the nation and shut everything down while we were at the airport to fly to Sydney, so the rest of the hearings that we held were held virtually. They were held as we heard from people from around the country over the screens of their mobile phones, iPads or computer screens. Nonetheless, we heard some very powerful evidence. There were 13 hearings over that inquiry.

I think this bill, though, is a little rushed. There are some drafting issues that need to be resolved, many of which are resolved by the amendments that Senator Cash has foreshadowed, which go to fixing, in particular, some drafting issues and some issues that probably weren't really thought through. I do want to commend my colleague Senator Paul Scarr for the work that he did and the substantial work that he put in to preparing those additional comments that are contained in the committee's report that we're considering here today. I want to commend him for that. It's been very helpful to me to understand the particular changes for this bill, which I'll go through in a moment. I do want to commend Senator Scarr for his work that he put in. I know that he personally did it and had a great amount of insight. To have someone with a law background helps. When I was on that committee—I don't have a law background; I've got a background in social services –in the last parliament, I was able to engage very much on the practical, families issues that arise whenever there's a family dispute and whenever there's a separation, but Senator Scarr bringing his experience of law has been of real assistance and no doubt was to that committee too.

Family law is complex. Above all, it directly impacts families, which are, as I said, the very fabric of our society. Every year, tens of thousands of Australians find themselves going through the pain and sadness of separation. Some of the measures in these bills, in particular the second bill that we're dealing with, which is the information sharing bill, are welcome. But in many areas, especially the Family Law Amendment Bill, we recognise that there are serious issues, and the solutions proposed, frankly, go too far or are untested. And so, when we're passing law, particularly in this area, we must be very careful.

There are few things in the Commonwealth Attorney-General's portfolio that have a more direct impact on Australians than family law. Every year, tens of thousands of Australians, as I said, find themselves going through the pain and sadness of separation. These measures go some of the way to addressing that but really, as I said, are untested.

We join with the government in recognising that many of the issues this bill seeks to address are problems that are in real need of a solution, but in too many places the proposals put forward by the government in the bill do not align with those problems. They go beyond recommendations made by previous reviews and are not supported by the profession. They have unintended consequences and have not been road-tested in communities on the ground. The coalition's very real concern is that, although we join with the government in recognising these problems, the solutions in this bill, as I've said, are untested and may actually make things worse for Australian families, and that is something that we as legislators must be very cautious about.

In the report that I referred to from the last parliament, from the Joint Select Committee into the Family Law System, in the first interim report of that committee, the committee received evidence both in favour of and objecting to the repealing of the presumption for equal shared parental responsibility and the requirement to consider equal time. We heard from people on both sides of this debate. Many of the professionals said that this element needed to be amended, but many of the parents that put in submissions said it actually needed to be strengthened. The committee also heard that there should be a mandatory starting point of fifty-fifty care in all parenting arrangements. That wasn't a view that was universal, but there were many that brought that view forward to the committee.

I want to quote from the Lone Father's Association's submission. They said:

There appears to be no evidence that the many separating parents who have gone down this pathway by consent have had their experiences considered, rather we suspect that the presumption for shared care is under attack for reasons considered in respect to parents who are unable to reach any parenting agreement and take the matter to the Federal Circuit Court or the Family Court as their first and only option. There appears to be little or no account for facts which apply to a significant number of successful shared care arrangements by consent.

The Australian Brotherhood of Fathers said:

The proposal is regressive and, if implemented, would, we firmly believe, be highly detrimental to the best interests of children. The proposal fails to acknowledge that the overall interests of a child, including with respect to safety, are best served by promoting the active involvement of both parents in a child's life …

That is critical. Amending the definition so that it requires those key decision points in a child's life to be considered, rather than maybe having this fifty-fifty minimum requirement, is possibly one way of addressing that. What's meant by 'key decision points'? Well, that's decisions on what school the child goes to, expenditure commitments for the child, and the church or religion that they might participate in. These are key decisions that the courts can use to determine the strength of the decisions going forward, so that's something that needs to be considered.

The final report of the Australian Law Reform Commission, which the committee considered, says:

It appears that the primary basis for confusion is the presumption of equal shared parental responsibility, rather than the general concept of parental responsibility.

So it's not just about the amount of time that is spent; it's about the responsibility that parents can take. The Australian Law Reform Commission's report said:

Although the equal shared parenting provision refers to parental responsibility, rather than care, submissions and consultations confirmed widespread confusion outside of family law system professionals about its meaning. This is despite provisions later in the Act clarifying its application as requiring joint decision making about major long-term issues.

The Australian Law Reform Commission were commissioned by the former government, by the Attorney-General at the time, to look into this matter, and their report said that an earlier report by the Family Law Council had:

This bill, in many ways, picks up on those recommendations that were made, and in that sense it's welcomed. Referring to a report by the House of Representatives Standing Committee on Social Policy and Legal Affairs, the ALRC report said:

It also urged the ALRC to consider the removal of the presumption of equal shared parental responsibility, and to develop amendments to Pt VII of the Family Law Act, which governs parenting arrangements.

This, of course, goes to the very heart of the matter, and I think it's probably the element of this bill that is the most contentious. It is certainly the element that I've received the most feedback on. So I'd encourage the government to consider adopting the amendments that Senator Cash has foreshadowed, because they go to clarifying what is intended, what is meant and what is required to make sure that families are supported.

The family law system can be simplified, but in the remaining time that I've got here I just want to say that there does need to be more support given to families that are going through a separation, and there needs to be much more information so that families know what they can do and what steps they need to take. The previous government invested significantly in various programs that go to helping families. The Lighthouse project is one of those programs. It fast-tracks cases involving family violence, which we know is just an absolutely insidious issue within our nation. In fact, it's getting worse—certainly in my home state of Western Australia, we know that the rates of domestic violence are going up and that it's becoming a very, very serious issue.

These are matters of law, of course—law that the courts can use to determine the future for families—but I think much more attention also needs to be put on the types of programs and services that are offered to families to assist them in managing their family law matters, and just managing the process going forward. The more people we can keep out of the courts and out of the system, the better; but the more that we can help to keep families together and prevent some of the issues that actually cause separations in the first place are obviously always going to be welcomed. The government can do much more in this area, and I encourage the government to consider that. As I said, they should consider the amendments brought forward by Senator Cash. But I would also urge the government to look at the programs and support services, to be funded in a more significant way.