Claire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | Hansard source

Like my colleague Senator Duniam, I rise to speak on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. I'd like to associate myself with some of the comments that my colleague Senator Duniam made in his contribution, which I was keeping an ear out for. One of the most important jobs we have in this place, with some of the greatest impact, is setting the rules, boundaries and parameters by and within which our family law system operates. This is something that impacts on a huge number of Australians. Whether or not they end up having an interaction with the family law system, just knowing that that system is robust and will look after the interests of all parties involved, particularly the interests of children, in a careful, considered and appropriate way is fundamentally very important, and it is part of our role to undertake that consideration.

The Senate, as we know—as we often talk about in this place—is also a chamber of scrutiny. It is our job to ask questions about how any piece of legislation will impact upon the lives of Australians, and we have several ways of doing that. One of those ways is through the Committee of the Whole process in this chamber, and I'm sure that we will be having a lengthy Committee of the Whole process for this legislation that we are speaking about here today, given the concerns that have been raised by a number of my colleagues.

We also have the Senate standing committee review process, which is when legislation is sent off to committees for review, as this legislation was. It was sent to the Senate Standing Committee on Legal and Constitutional Affairs, which is deputy-chaired by my friend Senator Paul Scarr, who's in the chamber right now. I was quite shocked and surprised to hear that, for these significant changes to our family law system in this country, that committee was in a position to conduct only one hearing into this legislation. I'm sure it was not by any fault of my friend and colleague Senator Scarr. This is not a simple piece of legislation. There were many, many submissions to that Senate inquiry. I think it is disappointing that that committee was only able to find the time to conduct one hearing. I would have liked to see some further scrutiny placed over this bill. But, as we know, our Senate standing committees are controlled by members of the government, so I will just leave colleagues with that thought for a moment.

But there is no doubt, as I've said, that the family law arena is a very important and complex area of the law. We know that, every year, tens of thousands of Australians will find themselves going through the pain and the sadness of a family separation. While a small proportion of these cases are ultimately decided by our family law courts, there are still a very large number of Australian families going through what can be a very traumatic and difficult process. As I said, knowing that the laws that can deal with these issues—whether it's at the very worst end of the spectrum, where the court does have to become involved, or, indeed, leading up to that—are robust and appropriate is important. Where families with children are involved, we must ensure that the best interests and particularly the welfare of those children are at all times prioritised by our family law system.

In the last parliament I sat on a select committee that was established by the parliament that specifically looked at Australia's family law system in a very holistic way. It was a long-running and long-reaching committee inquiry. Given that it had such a broad scope, we heard from numerous witnesses that appeared at committee hearings, some of which were right at the start of the pandemic and others of which had to continue on online, as the case was, as we went through that process. We heard from many witnesses. We had many thousands of submissions, some of which are on the public record and some of which were confidential. From reading those submissions and hearing the words from people who had been directly impacted by our family law system, there is no doubt in my mind that, when people are dealing with family separation, for the overwhelming majority of them, that is one of the worst experiences that they will go through in their lives.

Again, Australians deserve to know that their family law system is operating in a way that can help and protect them and deal with the competing interests in a fair and reasonable way when they have to go through that process. Keeping that in mind, we have to remember that if we're going to tamper with those laws, as legislators in this place, or if we're going to update or change those laws, that we have a responsibility to scrutinise those changes appropriately.

The coalition does welcome and supports a number of the measures that have been presented in these bills which we're debating here concurrently today, particularly those in the Family Law Amendment (Information Sharing) Bill 2023. That said, we do have concerns that other measures in the bill have not necessarily been supported by all stakeholders, are untested and, therefore, potentially could have unintended consequences and effects. I'll go into some of these issues in a moment. But, again, it goes back to this question: how are we, in this place, appropriately scrutinising legislative change, particularly in a sensitive area of the law and particularly in an area of the law that, when it does impact upon Australians, does so when they're at their lowest ebb? That's what I learnt from my time on the Joint Select Committee on Australia's Family Law System during the last parliament. People are at their lowest ebb when they're dealing with our family law system, so we need to know that when we change the laws around that system we're giving due consideration to all of the consequences. As I said, the coalition does have some concerns about the consequences of some of the changes that we're debating here today.

One concern that has been raised by stakeholders, including the Law Council of Australia, is the change to the list of considerations for the court with regard to parenting decisions. Currently, the court is required to consider the benefit of a child being able to have a 'meaningful' relationship with parents and other people who are significant to the child, where it is safe to do so. This bill that we're debating here today removes the word 'meaningful' from that consideration, so that it would require the court to consider only the benefit of the child having 'a relationship' with parents and other significant family members. There is, of course, a large difference between having 'a' meaningful relationship and a 'relationship' with anybody, because 'a' relationship could be a very irregular or rudimentary form of contact. I don't think you need to be a legal expert to figure that out. If you remove the word 'meaningful' it does, to an extent, reduce the threshold that might be required to establish whether or not such a relationship exists. The Law Council expressly raised this as an issue which needs to be corrected, and the coalition certainly agrees with this concern.

As I mentioned earlier in my contribution, the safety of children must be the highest priority when we're dealing with our family law system and when we seek to change the legislation that underpins that system. We have to have the safety of children in mind as our highest priority. We're unsure why the simplified list of factors for consideration in this bill does not require the court to consider existing family violence orders and the basis upon which they were made. It seems that the bill would have been a good opportunity to make that a requirement, given how relevant any existing family violence orders and the circumstances of those orders should be to the considerations of the court. Clearly of course, those factors would be considered closely by the court, but they're absolutely fundamental to these decisions. On face value, it seems that they should be a required consideration. It's one thing to say, 'Well, of course, any reasonable court, any reasonable judge or any reasonable lawyer would take these considerations into account—they would consider existing family violence orders.' But why not make that a requirement? Again, through the inquiry that was conducted in the last parliament, it was evident to me that once there were family violence orders involved in a family law dispute, they added an extra layer of complexity to the situation and—certainly, I think—increased the likelihood that the family separation would end up going through the court system. So there are very good and sensible reasons for that, but why shouldn't that be a requirement of the court?

We also note that concern has been raised by some in the family law profession that the government's simplified list risks overlooking a number of important factors. It's been expressed by some that guidance could have been included specifying factors to be considered, including the child's maturity or level of understanding; whether a parent has been engaged in parenting in the past—including their obligations to maintain a child financially; the likely impact of any change in circumstances; and the practicalities of any arrangement.

Once again, of course the courts are likely to consider some or all of these factors, where they're relevant, but the concern is that if we aren't providing suitable guidance within the legislation specifying that these matters should be considered, they may not always be prioritised properly. Similarly, the bill cuts the objectives and principles of the parenting framework in the Family Law Act. It repeals the objects and principles that have guided families and courts for many years which are set out in section 60B of the act. The explanatory memorandum says that despite appearances to the contrary, the intention is not to lose these objects and principles. If that's the case, why take them out to start with? The problem is that in seeking to simplify it, though, taking some of these objects and principles out of the act does risk sending the message that the priority has changed in regard to those objects.

As the act stands currently, the intent of the parliament is clear. It makes clear that the parenting framework intends to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, where it's in the best interests of the child to do so; to protect children from abuse, neglect and family violence; to ensure children receive adequate and proper parenting; and to ensure that parents fulfil their duties and meet their responsibilities. Those are four very simple and straightforward points that I don't think any fair-minded Australian would disagree with—that we need to have consideration of these things when considering the operation of a parenting framework. These things are not controversial and they should continue to be central to our Family Law Act.

If all those objects and other principles are still relevant—and, to be fair, the Attorney-General's explanatory memorandum says that they are—why then are we removing them from the relevant legislation with this bill? It does seem counterintuitive to remove them from the act just in the name of simplification. I think we should seek to simplify things when they're overly complex, and when simplifying them serves a purpose. But those four principles that I read out are not complicated. Like I said, they're principles that most fair-minded Australians would agree should be considered within our family law system. It just seems somewhat nonsensical to seek to remove them at this point.

Just in summary: many of the changes in the family law amendment bills that we're debating here today were made with good intentions; we recognise that, we support some of the changes that are in the bills and we join with the government in recognising that many of the issues that these bills seek to address are problems that need a solution. Like I said, I spent a lot of time on the family law committee in the last parliament and I don't think that anybody in this place would think that our family law system is perfect. But in too many places the proposals that are being put forward by the government in these bills do not align with those problems. They go beyond recommendations made by previous reviews, they aren't supported by the legal profession, they have unintended consequences and, in many cases, they haven't been road tested on the ground. The coalition's very real concern is that although we join with the government in recognising these problems, the solutions in these bills are actually going to make things worse for Australian families. We cannot afford for our family law system to make things worse for Australian families. As I said in my very first moments of this contribution, that's something that we, as legislators, should be very cautious about, particularly when we're dealing with a system that's meant to guide families through some of the most difficult parts of their lives.