Linda Reynolds (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 in the debate here today. I know as a senator for over nine years and through my electorate office and also my involvement in various committees that there are few things in life and in our jobs as MPs that cause the same difficulties and complexities for families and result in consideration here in the parliament and in our offices than family law. It's a fact that every year tens of thousands of Australians find themselves going through the pain and sadness of separation. All too often the cases that are not more readily resolved are the ones that come through our doors. Certainly they are ones where the children inevitably suffer the most. In a small proportion of these cases disputes will be decided by a judge in Australia's family law courts. I think all in this chamber agree that we as a nation should aim for a system that resolves as many of these disputes as possible as quickly and as cleanly as possible in the circumstances and that where children are involved we must at all times prioritise their interests.

Some of my colleagues have already articulated that there are a number of measures in these bills that are very welcome, particularly in the information-sharing bill. Many of the bills we have seen come through this place in the last nearly 18 months from the Labor Party had been done without sufficient consultation and, even where consultation was done and Senate committees were given an appropriate amount of time to reflect on the bills that came before this place and how to improve them, the Labor Party simply dismissed and discarded those concerns. We have seen a litany of those come through in recent times—everything from organ tissue donations to, more recently, pharmacists and industrial relations. Unfortunately, the pattern for the Labor Party now has been to treat almost all bills that come through here a bit like ambit claims for the trade union movement. That is certainly the tactic they've employed time and time here in this place. Sadly, the consequence of ramming things through with the support of the crossbench and the Greens, is that the legislation is all the poorer for it. In this case it will have significant outcomes for families going through one of the most stressful and traumatising circumstances in their life.

Many changes in the Family Law Amendment Bill are based on good intentions. We join the government in recognising that many of the problems this bill seeks to address are in need of solutions, but yet again, as I said, in too many places the proposals put forward by the government do not align with the actual problems they are seeking to address. As a number of my colleagues have mentioned, they go beyond recommendations made by previous reviews, they are not supported by the legal profession, they have unintended consequences or they have not been road-tested with community organisations who day in and day out deal with these most challenging issues.

The coalition have grave concerns. Although we join with the government—as we always have, whether we are in government or opposition, taken a very bipartisan approach to this—the solutions in this legislation are untested. Sadly, we believe that many of the changes will actually inadvertently—I've no doubt—make things worse for Australian families. I also acknowledge my colleague Senator Paul Scarr, who just entered this place, for the work he has done personally on this bill and for what he has noted on this. He has been incredibly productive and insightful. It's a shame that the government hasn't taken a lot of these concerns seriously. I recall that, when the last major reforms went through in both places, there was a very bipartisan approach to this type of legislation. There were many Labor luminaries on the review at the time under John Howard, and there was much greater consideration and consultation with the legal profession and organisations and across the chamber at the time. I think this bill is all the worse for it.

In my remarks today I will focus on part 1 of schedule 1, which is the objectives and principles of the parenting framework. Schedule 1 of the bill drastically cuts the objects and principles of the parenting framework in the Family Law Act. That is not necessarily a bad thing, because it is complex, long and hard to interpret. In itself, it repeals objects and principles that have guided families and also courts and mediators for many years, and they're set out in section 60B of the act. The explanatory memorandum to this bill says it all. Despite appearances to the contrary, the intention is not to lose the objects and principles, but, clearly, that's what it actually does. The explanatory memorandum says:

The repeal and substitution of section 60B does not indicate that the repealed objects and principles are no longer relevant.

Clearly, it's saying that they should still be relevant. The EM continues:

Rather, the intention is to simplify the objects to better assist with the interpretation of Part VII and avoid duplication with section 60CC which sets out what the court must consider when determining what is in the best interests of the child.

Clearly, the intent is still there. The problem—there are several—in particular is the message that this repeal sends, particularly when viewed as a larger part of the changes in schedule 1.

As the act currently stands, the intent of the parliament is crystal clear. Summarised, it says 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, of course, it is in the best interests of the child to do so. The parenting framework is also intended to protect children from abuse, neglect and family violence. It's also designed to ensure that children receive adequate and proper parenting and that parents fulfil their own duties and responsibilities to meet these requirements. These things currently in the act are not controversial. They were formed in a spirit of bipartisanship, and as principles they remain supported by both sides of politics.

There are also some general principles that underlie these objectives. These actually say that, where it's not contrary to the best interests of a child, children have a right to know and be cared for by both of their parents; children have a right to spend time and communicate with their parents and others who are significant, such as their grandparents and other relatives; parents jointly share duties and responsibilities for raising their children; parents should agree about the parenting of their children; and children have a right to enjoy their culture. Again, these principles are not controversial, and they were not when they were implemented under the Howard government. The Attorney-General's own explanatory memorandum says that they are still relevant.

Here is the crux of the problem from the coalition's point of view. If they are still relevant they should remain in the bill. If they are truly still important to the government, you don't take them out and make a reference in the explanatory memorandum, which, over time, gets completely lost. Certainly, people involved in mediations and people involved in court cases will not be going back to obscure explanatory memorandums in this place. They will be looking at the act itself. So, the risk is that, when this is read in conjunction with other changes to the bill, the overwhelming message is that the parliament is reversing its support for principles that have successfully guided tens of thousands if not hundreds of thousands of parents.

At law, the words in the explanatory memorandum will be used to determine the meaning of the law only if a provision is ambiguous or obscure, or if the ordinary meaning of the words of the statute leads to a result that is manifestly absurd or unreasonable. We all know this in this place, and it is the subject of a lot of debate over many bills and explanatory memoranda. But I keep coming back to the main principle: if those principles are so important—and they are, and we all agree they are—they should stay in the bill. It is not yet too late to make amendments to ensure that those principles are in the bill, to send and to keep sending that clear message to jurists, to families and to mediators that those are the guiding principles. And, as I've said, certainly none of them will have the need or even the knowledge to go diving for a 91-page explanatory memorandum, in which this is buried somewhere in the middle. Most families, fortunately, will never go to court, but they will make decisions in the shadow of the law. If this is no longer the law of the land, then it is very, very clear that there will be turmoil, pain and far more fractious than necessary relationship management issues in and out of the courts.

Part 2 of schedule 1, which I believe is the most significant part of schedule 1, would repeal the presumption of equal, shared parental responsibility. In part 1, which I've just discussed, it starts to make more sense as to why they've taken those principles out. And I'll just repeat: the most significant part of schedule 1 would repeal the presumption of equal, shared parental responsibility that applies when courts make orders. The history of this is incredibly important. The introduction of that presumption was a triumph of bipartisanship and sensible reform for families. If you applied the commonsense test, any and all Australians would absolutely believe in the presumption of equal, shared responsibility as a starting point in any family law matters when courts are making parenting orders.

Prior to 2003 there was widespread concern about how courts dealt with contact and residency issues for children when a marriage broke down. The way courts approached those issues before left many parents feeling excluded from their child's lives after separation. Certainly those of us who were either in politics or working in electorate offices at the time knew just how fractious and how incredibly difficult it was for one parent or the other to be excluded from their child's lives and from having access. Against that backdrop, which many of us here will remember, Prime Minister Howard commissioned an inquiry into the family law system, chaired by Kay Hull AO, which resulted in the landmark report Every picture tells astory. The report was, quite simply, remarkable, and its recommendations were unanimous and bipartisan. It involved a roll call of senior Labor MPs, and they all joined coalition members of the committee to work through this issue over a number of years.

Unfortunately for families who are currently going through family breakdown and for those who will in the future, this bill removes many of those important guardrails that were introduced in 2006. The Australian Law Reform Commission, at the initiative of the former coalition government, did not recommend such a removal—for very good reason. The ALRC said it supported the idea that a presumption of shared parental responsibility serves as a great starting point for negotiations between parents and recommended that the concept be retained. I don't think any normal and sensible Australian would ever disagree that that was the right approach.

In conclusion, Labor's amendments go much further than has been recommended and than I believe any reasonable Australian would want. For those reasons, I call on the Labor Party to consider amendments. It is not too late.