Maria Kovacic (NSW, Liberal Party) Share this | Hansard source

The Family Law Amendment Bill 2023 and Family Law Amendment (Information Sharing) Bill 2023 will amend the Family Law Act 1975 with the stated purpose being to make the family law system safer and simpler and to ensure that the best interests of children are placed at its centre. The amendments implement a number of recommendations from the Australian Law Reform Commission's 2019 report into the state of Australia's family law system and elements of the government's response to the 2021 joint select committee inquiry into Australia's family law system.

There are nine schedules to the bill, which include the redrafting of provisions to do with the enforcement of parenting orders and the protection of personal information in Family Court proceedings. Schedules 2 to 6—amendments aimed at acknowledging Aboriginal or Torres Strait Islander notions of family and kinship; schedule 3—changes to the role of the Independent Children's Lawyer; schedule 4—the introduction of a new harmful proceedings order, a power to prevent a vexatious litigant from filing new applications without first obtaining leave; schedule 5—a regulation-making power with respect to family report writers; and schedule 7.

The key amendments are in schedule 1, which amends the legislative framework for making parenting orders, including changes to the section which covers the factors to be considered when making parenting arrangements in the best interests of the child. This schedule also repeals the presumption of equal shared parental responsibility and the mandatory consideration of certain time arrangements for parents.

There is a strong focus amongst stakeholders on these amendments, with many supporting them, some suggesting improvements and some raising concerns about their impact. I note that a number of stakeholders, including the Law Council of Australia, emphasised that proper resourcing must follow reform, particularly as several of the proposed reforms may have significant funding implications.

The amendments in the bill implement a number of the recommendations, as I noted from the Australian Law Reform Commission's 2019 report into the state of Australia's family law system and of course also in the government response to the 2021 joint select committee. It also makes consequential amendments and minor amendments to the Federal Circuit and Family Court of Australia Act 2021. I've talked about the structure briefly and the list of nine schedules. Again, schedule 1, which will be my primary focus with my views today, contains amendments to the legislative framework for making parenting orders, including changes which cover the factors to be considered when making parenting arrangements, again, noting this is when it's in the best interests of the child. It's interesting to think about how it can be in the best interests of the child when we're actually repealing the presumption of equal shared parental responsibility and consider it would be in the best interest of a child if both of their parents were fully engaged and responsible for their life outcomes.

We need to stop for a moment and consider that nobody when they start a relationship and a family want to end up in separation or divorce or in the Family Court. It is not a happy outcome; nobody plans or aims to end up there. As legislators, we have an obligation to ensure that, when they do, they understand and have clarity on the process and that they don't have to deal with the unintended consequences of decisions that we've made here because we haven't thought through the practical application of the things they will need to deliver based on our decisions. That is in particular with respect to the best interests of the child. Children have very little control on the road to the Family Court, so it's our responsibility to make sure that the time they spend there doesn't damage them, is as short as possible and delivers the best possible outcomes, given the circumstances, for themselves and their family.

We also need to consider what the impact of the change from 'a meaningful relationship' to just 'a relationship' will be. Does that include a bad relationship? Does that include a fractured relationship? Does that mean a relationship with occasional contact? If we can't answer these questions, we need to think about what the purpose of this change is—why we are taking this word out. Is it just a word? What is the broader implication of removing this word? What is it that we are trying to make better by taking out the word 'meaningful'? I can't think of anything that would improve in this process—sadly, having been through it myself—by taking out the opportunity for a child to have a meaningful relationship with a parent. We need to consider that sometimes, particularly before a court, the child becomes an unwilling participant in what can become a feud between their parents. We need, as much as possible, to protect children from that. We need to consider all of this, of course, through the appropriate lens relating to family and domestic violence—to consider that it is not just physical but, as we now better understand, about things like coercive control and financial abuse.

I do note that the current list of factors is long. As most of us know, if something is long it can often be confusing and complicated. There are two 'primary' considerations and 14 'additional' considerations. The list runs to over three pages and is about 900 words long. That's a lot of information to take in. It can be confusing and difficult for parents and courts, and I agree that it should be simplified. But there are real concerns about the simplified list of considerations that has been proposed by Labor in this bill. The bill does not strike the appropriate balance, especially as it relates to the best interests of the child. It goes too far in its simplification. The wording of the bill is ambiguous, and that is not something that we want or can afford in such a critical and deep-reaching area of family law. Losing the word 'meaningful' is a significant change. It is not just a word. Let me repeat that: it's not just a word. It sends important signals to the court about the type of relationship that is in the best interests of the child. It also sends those signals to the vast majority of separating couples who don't go to court and are not represented by lawyers but who instead make decisions themselves in the shadow of the law. It sends a signal about the quality of the relationship. Supervised visits once a month or once every two months, on a birthday or at Christmas or Easter, every school holidays—are they a meaningful relationship? They may be a relationship, but who do they benefit? It also has deep implications for extended family networks, because the list says the court needs to consider the benefit to the child not just of a relationship with parents but of a relationship with others who are significant to the child. For some children, relationships with their grandparents, aunties, uncles, cousins or step-siblings may be hugely important, and existing meaningful relationships can change to just 'a' relationship. Whether we want to accept it or not, there is damage that comes with that. But the court doesn't need to consider the benefits of a meaningful relationship with those people—only the benefits of 'a' relationship. Bodies like the Law Council of Australia have expressly raised this as an issue that needs to be corrected. It is an oversight in the legislation that should be corrected. In some instances, the most meaningful relationships a child will have are those with grandparents, aunts or uncles. We need to think about that.

We need to think about the consequence of the court being required to consider any views expressed about the child and whether they are actually the views of the child. As currently drafted, some could encourage others to coach or pressure a vulnerable child. It creates a scenario where a child is perhaps espousing the views of a particular parent or relative. Concern has been raised by the legal profession, and I expect this is also a concern more broadly in relation to the impacts of the wellbeing of a child, where they may be pressured or feel obliged to become an active participant in a dispute between their parents. A process which began as serving the best interests of the child can become one where a child is impacted or damaged by that same process.

The simplified list doesn't require the court to consider existing family violence orders and the basis on which they're made. This is entirely inconsistent with what is in the best interests of the child. If the family home is dangerous or violent, then that is a matter that the court must consider. This is an issue that we in the coalition raised during the committee process. It is not a departure from the existing practice, where things like family violence orders are usually considered, but it is surprising. The failure to include it adds weight to our concerns about the attempts to ram this bill through without any real attempt to scrutinise or negotiate in relation to this piece. It is also worth noting the concern raised by some in the profession that Labor's list risks overlooking a number of important factors.

The list doesn't include anything else that is relevant to the particular circumstances of the child. It's not a cookie-cutter process; there are always extenuating and special circumstances. There is no guidance on the face of the statute about the child's maturity level or their level of understanding; whether a parent has been engaged in parenting in the past, including their obligations to maintain the child financially; the likely impact of any change in circumstances; and the logistical practicalities of any arrangement. These things could be referred to in legislative notes, as some in the profession have suggested. We hope and trust that the courts will be able to take these into account.

I listened with great interest to the contribution of Senator Scarr, who raised some very good, well-considered points. I also read his comments on the recent committee report on the bill. One statistic that jumped out at me was that an AIFS study found that 53.7 per cent of parents who used the courts as their resolution pathway in 2014 reported that physical violence was relevant to their situation prior to separation. Let me repeat that: 53.7 per cent said that physical violence was a factor in their situation prior to separating, highlighting the importance of safety and the history of violence in the family home. Yet there is no consideration of this. We're saying to a child that's been subjected to family or domestic violence in their home that when they come to the Family Court it's not something we're going to think about or that we think a court ought to think about in determining what happens to that child. I can't really get my head around how that is in any way, shape or form in the best interests of anybody, but, in particular, of that child.

I think there is good intention being displayed in relation to these bills, but it is clear that they need more work. There are some holes here, and these must be addressed before they become law. They must be addressed by us here before they impact any more children unnecessarily.

Debate interrupted.