Jonathon Duniam (Tasmania, Liberal Party, Shadow Minister for Environment, Fisheries and Forestry) Share this | Hansard source

I rise to join colleagues in making a contribution to the debate on these important pieces of legislation, the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023, which are before the Senate today. Obviously, matters of family law are critically important to the future of this nation. The family unit, of course, underpins who we are as a society, and the laws relating to how we manage families, in the multitude of forms they take on, are critically important. Family breakdown is a fact of life—a very sad one, a distressing one, but one for which we need to find a way to ensure that the laws of this country support those who are going through such a stage in their life, including and particularly those who experience extreme disadvantage in this space, which of course is children. I know many of my colleagues have spoken about this by putting the perspectives in relation to the need for these laws to support and protect children who are going through the experience of family breakdown. Ensuring that we get these laws right is critically important.

I think it is important to point out, before I get into the substance of my contribution, that in the spirit of getting these things right we need to make sure every perspective is considered properly and fully and is ventilated in a way that is meaningful in terms of the outcomes we reach with the legislation we produce in this place. These are not just words on paper. These are laws that impact people's lives forever. If we don't get these things right then the impacts of bad laws and bad programs that flow as a result of that are life-changing and have an intergenerational impact, which is something I'll touch on a little later in my contribution.

But the amendments to this legislation that were provided by the government were distributed after close of business on Friday, and here we are, at the first order of business on Monday, dealing with it. Obviously that means some of the changes being proposed here haven't had proper consideration. That is concerning. Now, that doesn't mean everything that is being proposed is somehow bad, but it's very difficult to know. I know work has been done through the weekend to assess and understand these amendments being proposed by the government. But, again, this is so critically important, and it is essential that we get this right when we are dealing with the most important and foundational element of our society, and that is the family and the laws that relate to how we assist them in, frankly, some of their most trying times.

As referenced earlier, the utmost care is needed when it comes to a system that deals with family breakdown and the elements that apply to families in traversing this very difficult part of anyone's life, particularly when it comes to children. We need to ensure that we protect and preserve the family unit as a paramount concern, because that's what shapes us as who we are today. Everyone who experiences childhood is shaped by their family experience. Sometimes that is a very negative experience. In this society, sadly, we see extreme numbers, and I recall what Senator O'Sullivan said in his contribution about the increasing incidence of family violence occurring in his home state of Western Australia. That has a negative impact on those who are experiencing those situations, and it will shape them for life. How we respond to that is central—how we make sure there are the proper supports when the family unit disintegrates and how we protect those who are fleeing family or domestic violence, particularly children, who have no say, who are not the perpetrators but the victims in every instance. How we deal with the supports they need is central to this debate.

We need to avoid anything that is even remotely retrograde in regard to the laws that govern family breakdown and how we support families going through that process. As I said before, anything that takes a backward step in terms of protections, considerations by the court and the family law system that would ensure the best outcomes for family members has an impact, not just on the individual—the spousal partners and how their lives are moving on from that point post separation—but also on the children. Once a negative impact is experienced because of a system that doesn't properly support them, as I said before, that permeates through generations, just as, sadly, instances of family and domestic violence permeate through generations and have a significant impact for many generations beyond those in which the initial instance occurred. We have to prevent that from being something that continues, and that's why these laws must be right.

As I know others in this debate have said, we should aim for a system that resolves disputes quickly and cleanly. That's what users of the family law system want. They're going through enough on their own with regard to family breakdown. People don't do this for fun. They do it because they have serious situations they're facing—sometimes life-threatening, as we know. Particularly where children are involved, we do need to prioritise the best interests of the child and those who are disadvantaged in the situations.

As the shadow attorney-general, Senator Cash, has already indicated, some of what has been proposed in these bills is welcome and certainly needed, particularly when it comes to the second of the bills before us—the Family Law Amendment (Information Sharing) Bill. But we need to recognise that just because these proposals are put forward, it doesn't mean that they're the right solutions, and that is where the concerns of the opposition arise. We look at what is put in place by way of law, and everything we do has a flow-on impact. We don't know what impacts will be felt by some of these changes—many of them will be unintended, and that is what concerns us most. So, while we join with the government in seeking to recognise the problems—and some of the issues this bill seeks to address are problems in need of a solution—too many of the proposals and that have been put forward by the government don't align with what the problems actually are. If a solution isn't fit for purpose, if it isn't actually going to address the issues that families are facing, and that the family law system and the experts who operate in that system are telling us need to be resolved, then why are we doing this?

I turn back to that point about getting this right. Circulating amendments after close of business on Friday only to debate these bills in the Senate the following Monday as the first order of business—cognately, too, I might add. Previously, we were looking at dealing with these bills separately, given the importance of them and the sensitive nature of the legislation we're dealing with here—the need to protect the family unit and to preserve a foundation stone for our society. Yet these amendments have been brought in at what one might call the eleventh hour, and we are now debating them, no doubt with a move to resolve this legislation as a matter of urgency at some point in the near future.

In terms of committee inquiries into this legislation, only one hearing was held. A great many submissions were made with regard to this legislation, and I had a bit of a look through the submissions from the various stakeholder groups and experts around the concerns they have. Some expressed support for some elements of the legislation; others had concerns that were far-ranging. One hearing to deal with the multitude of issues that have been raised? Again, it's not just some simple piece of legislation that relates to any other ordinary, everyday piece of business—this is a set of laws that relates to the protection and the preservation of the family unit. That's why I'm concerned to hear that there was only one committee hearing in relation to this legislation. As Senator O'Sullivan said in his contribution, the joint select committee which operated in the last parliament over an extended period conducted—albeit on a broader range of issues—13 hearings, which sounds more befitting of something as serious as family law and related matters. I suspect that the proponents and supporters of that joint select inquiry had the view that it was an important area of law and, therefore, we need to make sure that what we do in this space we get absolutely right.

The responses in the legislation we have before us go beyond the recommendations that have been made by previous inquiries and reviews, as we already know. Many of them aren't supported by the profession. I know there are mixed and varied views around the legal profession, but I tell you what—in terms of the operation of the legal system and the laws that relate to particular areas, including family law, I would be taking the advice there. The fact that the profession have indicated that they are, in some cases, not supportive of what's proposed here needs to be taken absolutely seriously. As I've mentioned already, there may be unintended consequences of serious legislative proposals that haven't been road-tested in the community. We don't know what consequences might flow from them.

These are sensitive and serious matters relating to some of the most vulnerable people in our community at the most distressing point in their lives. Amendments to these bills were circulated on the last business day after close of business, and as the first order of business in the Senate this morning we are dealing with these amendments in a cognate debate on the bills, which is very concerning. What could possibly go wrong? To that end, I'll look at some of the issues that have been raised and need to be considered. As we know, there is a list of primary considerations and additional considerations to be considered by the court in relation to the best interests of the child. The removal of the term 'meaningful' with regard to a relationship is immensely concerning. A 'relationship', as a definition, could mean very little. It sounds very much like a tick-a-box type of approach to a link between a child and an individual. 'Meaningful' has the characteristic of some familial relationship where there is a strong bond, a respect, a love and a desire and willingness to protect. It is something that is linked to the family unit. The removal of that terminology is something that many experts and many submitters, including the Law Council of Australia, have expressly raised as an issue that should be corrected. The fact that we are moving away from that is something we look at as a retrograde step.

I think also the starting points around the parenting framework—ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, when in the best interests of the child; protecting children from abuse, neglect and family violence; ensuring children receive adequate and proper parenting; and ensuring that parents fulfil their duties and meet their responsibilities—are not controversial, and neither are the general principles that underlie those objects that need to be considered. Obviously, the materials that relate to the system—the various supporting documents, such as the 91-page explanatory memorandum about amending this legislation—which I think everyone agrees need to be simple, clear and straightforward, are not something that families who are going through family break-up, particularly in highly distressing situations, are going to be looking at in any depth or at all when they want to get the best outcome for themselves and, importantly, for their children. There are a range of measures there, which I know colleagues have spoken about at length. They include, as the shadow Attorney-General has said, the presumption of shared parental responsibility as a starting point for negotiations. The ALRC made the point that that should be retained as a starting point. That doesn't translate directly into shared custody. I've raised a number of concerns here. Amendments have been circulated at the eleventh hour. Here we are rushing the debate. It's very concerning, and we need to make sure we get it right.