Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I rise to speak on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. As we have just decided as the Senate, given the debate will run concurrently with debate on the Family Law Amendment (Information Sharing) Bill, I ask that the Senate take note of my earlier comments about that particular measure.

There are few things in the Commonwealth Attorney-General's portfolio that have a more direct impact on Australians than family law. Every year, thousands of Australians will find themselves going through the pain and sadness of separation, and in a small proportion of those cases disputes will be decided by a judge in Australia's family law courts. As a nation, we should have a priority. We should aim for a system that resolves those disputes as quickly and as cleanly as possible. That is in everybody's interests. Where children are involved, we should at all times prioritise their best interests.

Many parts of this bill are moved by good intentions. As Senator Scarr himself, who sat on the committee that looked at this bill and inquired into it, has stated and as we also recognise, as Senator Scarr did, in particular in the additional comments that he provided through the committee process, many of the problems that the bill we have before us seeks to address—again as Senator Scarr has just articulated, in too many places, the proposals put forward by the government do not align with those problems. They go beyond recommendations made by previous reviews. They have unintended consequences, and we'll be moving some amendments to assist with addressing the unintended consequences. Or they themselves have not been road-tested. Our very real concern is that some of the solutions in this bill may actually make things worse for Australian families, and nobody wants to see that. That is something that, as legislatures, we should be very cautious about, particularly when we are dealing with a system that is meant to guide people through some of the most difficult parts of their lives.

There is an extraordinary amount that could be said about this bill, but we have limited time. In the interests of all Australian families who will be affected, there is a tremendous amount to be explored on the record. However, I will highlight a select few things. Schedule 1 of the bill deals with the parenting framework, and the most significant change in the schedule is the repeal of the presumption of equal shared parental responsibility, which applies when courts make parenting orders. Now, the introduction of that presumption was a triumph. It was indeed a triumph of bipartisan and sensible reform. Prior to 2003, there was widespread concern about how courts dealt with contact and residency issues for children after a relationship breakdown. The way courts approach those issues left many parents feeling excluded from their children's lives after separation. Often this turned the debate away from the benefits that children derive from a positive and caring relationship with both parents and focused on arguments about equal time.

Against that backdrop, many will recall, Prime Minister Howard commissioned an inquiry into the family law system that was chaired by Kay Hull AO and resulted in the landmark report Every picture tells a story: report on the inquiry into child custody arrangements in the event of family separation. That report was remarkable in that its recommendations were unanimous and bipartisan, something we should all be incredibly proud of. The report was remarkable again in that it involved a roll call of Labor luminaries: Julia Irwin, the Hon. Graham Edwards, Jennie George AO, the Hon. Roger Price and Harry Quick. They joined with the coalition members of the committee to work through the issues. That took a number of years. Why? Because they wanted to get it right, and they were united in recommending a rebuttable presumption of equal shared parental responsibility. Their recommendations were then given effect by changes to the Family Law Act that was then passed in 2006.

Now, among other things, the reforms said that the courts must apply a presumption that is in the best interests of the child for there to be equal shared parental responsibility. The essence of the idea is that, where it is safe to do so, parents should cooperate in raising their children. Critically, the presumption does not apply in circumstances where there is abuse or family violence, and it is not a presumption that parenting orders should allocate time to parents on a 50/50 basis; rather, it is about the shared responsibility that parents have for decision-making about their child after separation.

The 2006 reforms established important guide rails on how parenting orders should be made. Now, when we look at the case for change, the reforms proposed by Labor in this bill remove those guide rails. I can assure you that the coalition recognises that the law needs to keep up with the changes in society. We recognise absolutely that there is room for improvement and we also recognise the overwhelming body of evidence is that this needs to be improved, and that is actually why it was the former coalition government who initiated the Australian Law Reform Commission's inquiry into the family law system.

What did the ALRC state in relation to the presumption of equal shared parental responsibility? The ALRC said 'that it supports the idea that a presumption of shared parental responsibility serves as a good starting point for negotiation between parties and recommended the concept be retained'. It did agree in principle with the existing exceptions to that presumption. However, this is what the ALRC also noted that 'in practice, parental responsibility has often been conflated with equal time arrangements. That conflation could then detract from a focus on the child's best interests.' So what the ALRC actually recommended was the law needs to be clarified. Specifically, it recommended that the provision be amended to replace the presumption of equal shared parental responsibility with a presumption of joint decision-making about major long-term issues. That approach was also supported by the joint select committee inquiry into Australia's family law system, chaired by the Honourable Kevin Andrews. That committee expressly considered the ALRC recommendation and acknowledged that the presumption is often conflated with equal time. The majority on the committee recommended amending the wording of the presumption to address the current misunderstanding of the provision that equal shared parental responsibility equates to equal time with the children.

Let's now look at the approach that the government has taken in this bill. What we have is the work has been done, the recommendations are clear that the presumption should be reformed and clarified, and the coalition agrees with that. But Labor's approach in this bill goes that much further. They want to repeal the presumption entirely. It is illuminating that when he consulted on the exposure draft of the bill, the Attorney-General, in typical style, never bothered to ask whether or not the presumption should be retained. He treated repeal as a given yet that is not what the body of evidence is in the presumption. The independent, impartial and expert recommendation of the ALRC, under this Attorney-General, never actually had a chance.

Labor, under this Attorney-General, has abandoned the careful bipartisan approach that led to the introduction of the presumption in the first place. I would say that is actually a sad thing for Australian families. If I look very briefly at the definition of 'member of the family', schedule 3 of the bill extends the definition of 'relative' for Aboriginal and Torres Strait Islander children to include anyone who is considered a relative in that child's culture. We support this in principle, but, in the Attorney's enthusiasm, yet again, like so much that he does, in ramming this bill through this place the practical implications of extending that definition have not been considered. There are some obvious consequences.

There are obligations in the Family Law Act to notify the courts about family violence. The changes in schedule 3 mean that, for Indigenous children, 'family violence' would include violence amongst anyone who falls within the extended definition. The effect of the changes introduced would be to apply the notification obligation to a much wider group of people. You would therefore have an obligation to notify the court even if the people involved were not raising the child, and you'd never need to notify for a non-Indigenous family. It leaves open the possibility that people who were not involved in the litigation could have their medical and police records subpoenaed. It also imposes an additional, more onerous burden which applies only to Aboriginal and Torres Strait Islander children.

Late on Friday, Labor circulated amendments to address this issue. That is welcome, if somewhat belated, as we had already raised this issue—it is a belated change, but it is a welcome change. But what does it actually tell us? It tells us that the bill the Attorney has tried to ram through would actually have made things worse for Aboriginal and Torres Strait Islander families. That is unacceptable. What else has he therefore missed in trying to ram this bill through? We don't know. Despite our request, Labor opposed an inquiry that would have actually asked the communities. Let's go ask the communities about how they feel about how these changes would work in practice. What do the changes mean for communities in Palm Island and Alice Springs? What is the interplay with the child protection system? Well, we actually won't know now until after the bill is passed.

In relation to the review of the operation of the Federal Circuit and Family Court in schedule 8, it is a measure on which the government chose not to consult. It is about the review of the merger of our family law courts, and it brings forward the review date by two years. Why would the government do that? We know from the committee process that the measure was included solely at the request of the Attorney's office. No-one else was asking for it. When you actually talk to the federal and family law courts, guess what? They don't want it. But what we do know is that this particular Attorney-General has an ideological fixation on opposing the Family Court's merger, despite the evidence that shows that, finally, we've had a step forward in providing a better experience for Australian families.

The family law courts should exist, first and foremost, to serve Australian families. It is their interests that should come first, not the ideological interests of the Attorney-General or the concerns of lawyers or judges. This is about the best interests of the Australian people. And, despite years of COVID lockdowns and disruptions, the early indications are that the merger has been extremely successful in reducing the amount of time that Australian families spend being dragged through Family Court processes. In other words, the merger is working in their best interests. But, instead of allowing the courts the time to bed down these changes, the Attorney-General, because of his ideological opposition, wants to now bring forward the review date. He wants to relitigate the issue. It is a point of pride for him. He wants his ideology to come before the interests of Australian families. Quite frankly, I will reject that type of opportunism. Changes to the family law system should aim to reduce the pain, cost and time associated with separation. They should not be a place for political pride.

So, as I've stated, the coalition agrees that many of the issues this bill tries to deal with should be addressed. The problems are well recognised, but, in the committee process, we need to explore further the unintended consequences that some of these changes will have. It is sad for Australians that, in putting this bill before the parliament, Labor decided not to try and work with the opposition. They decided to abandon bipartisanship. As I said, we will be moving a number of amendments to this legislation. In some cases, Labor themselves have already recognised they made a mistake, and we will support the amendments Labor are putting forward because we would have moved those amendments ourselves. But there are other amendments that we will move in good faith to make this bill a better bill. As Senator Scarr asked, why did they take the word 'meaningful' out of 'relationship with the child'? We will move an amendment to put that word back in, and I would ask for the government please to consider our amendment seriously.