Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Climate Change and Energy) Share this | Hansard source

I rise to speak on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. I'm sure most, if not all, in this chamber would agree that the family law system is one of the most crucially important policy areas that we have the power to legislate on. It has a direct and profound impact on Australians, both young and old, rich and poor. As such, it's paramount that we get it right, and it has only become more important. We know that divorce and separation are much more common today than perhaps a generation ago, which means more Australians are coming into contact with or being affected by family law. Given the immense emotional turmoil that is embedded within this difficult process, I think it is a given that we should be aiming for a system that resolves disputes as quickly and cleanly as possible. At the centre of our policy formation should be the welfare and the flourishing of our children. They don't get a say in a couple's decision to split, and they are the most vulnerable. At a time when stability is important for a young child's development, their world can be turned upside down, so we must prioritise their best interests.

The coalition welcomes some of the measures in these bills, particularly the information sharing bill, and we do acknowledge good faith and the noble intentions of those opposite in seeking to do the right thing by Australians going through this difficult process. However, we do have some concerns that the proposed solutions either overreach or overcorrect problems or are simply untested and therefore contain too many unknowns to blindly support. In some cases, the government has gone well beyond recommendations made by previous reviews, which is not supported by those in the profession and has not been road-tested on the ground. It's something we as legislators should be very cautious about, as I stated earlier, because we're dealing with a system that is meant to guide families through some of the most difficult parts of their lives.

In the parenting framework in schedule 1, namely when looking at the best interests of the child, we see that the most significant part of the schedule seeks to repeal most of the factors courts must consider when determining the best interests of the child. Whilst we agree with the sentiment, the confusing and difficult considerations—which run over three pages and almost 900 words—are difficult for parents and courts to navigate. These ought to be simplified and expediated, but there are some concerns that oversimplification can become detrimental to the spirit which the move to simplify seeks to achieve. Labor's revised list requires the courts only to consider the benefit of a child being able to have a relationship with the child's parents, and other people who are significant to the child, when it's safe to do so. The word 'meaningful' has been removed, which the coalition has concerns about. It changes the messaging around the quality of the relationships children ought to be exposed to in this scenario. A supervised visit once a month may well be 'a relationship', but it is not a meaningful relationship, and this has deep implications for extended family networks. The list says the court needs to consider not just the benefit to the child of a relationship with parents but also the benefit of a relationship with others who are significant to the child. This includes grandparents, aunts and uncles, cousins or stepsiblings, which may be hugely important. When we place the child at the centre, safety is of course the No. 1 priority, but I do believe emotional, psychological and even spiritual flourishing in some cases are deeply important to the healthy development of a child and should not be overlooked. Bodies like the Law Council of Australia have expressly raised this as an oversight which should be corrected.

We also note concerns about the court's consideration of any views expressed by the child. In principle it is appropriate that the child's views should be heard, considered and respected, but we raise concerns that the provision, as drafted, could encourage parents to coach or pressure children, and it's a concern that is shared by the profession. Labor's simplified list also requires the courts to consider what arrangements would promote safety of the child and persons who care for the child, but surprisingly the list, as introduced, does not require the court to consider existing family violence orders and the basis on which they were made. 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, and the failure to add it adds weight to our concerns about the attempts to ram this bill through without any real attempt to scrutinise the bill or negotiate bipartisan support.

There is continued ambiguity in the simplified list with regard to the statement 'anything else that is relevant to the particular circumstance of the child'. As it stands, on the face of the statute, there's no guidance about the child's maturity level or level of understanding; whether a parent has been engaged in parenting in the past, including their financial obligations to maintain the child; the likely impact of any change in circumstances; and the practicalities of any arrangement. These could be referred to in the legislative notes, as some in the profession have suggested. We hope and trust that the courts will take these into account.

Further to this, schedule 1 of the bill drastically cuts the objects and principles of the parenting framework in the Family Law Act. It repeals 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. It says:

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

The problem is the message that the repeal sends, particularly when viewed as part of a larger package of changes to schedule 1.

As the act currently stands, the intent of parliament is clear. Summarised, it says that the parenting framework intends to ensure children have the benefit of both of their parents having a meaningful involvement in their lives where it is in the best interests of the child; to protect children from abuse, neglect and family violence; ensure children receive adequate and proper parenting; and ensure that parents fulfil their duties and meet their responsibilities. These things are not controversial.

There are also some general principles that underlie those objects. Paraphrased, they say that, except where it is contrary to a child's best interests, children have a right to know and be cared for by both their parents; children have a right to spend time and communicate with their parents and others who are significant to them such as grandparents and other relatives; parents jointly share duties and responsibilities for raising children; parents should agree about the parenting of their children; and children have a right to enjoy their culture. Again, these should not be controversial, and the Attorney's own explanatory memorandum says they are still relevant. If they are still relevant, they should stay in the bill.

The risk is that, when read in conjunction with other changes to the bill, the overwhelming message is that the parliament is reversing its support for principles when guiding separating parents. At law, the words in the explanatory memorandum will only be used to determine the meaning of the law if a provision is ambiguous or obscure or if the ordinary meaning on the words of statute lead to a result that is manifestly absurd or unreasonable. But perhaps more importantly, we all know that, when parent recreation separating, they won't go to the explanatory materials. They won't dive into a 91-page explanatory memorandum about an amending bill, only to be told that some principles that were previously in the law continue to be relevant. Most families will never go to court but will make decisions in the shadow of the law, as we heard in the committee.

If we as a parliament agree that separating parents should share duties and responsibilities and cooperate to raise their children, we should say so. Those things should appear on the face of a statute where people can read them. Otherwise, we run the risk of short-changing the Australian people. It is understandably a very difficult balance to strike. Objective legalism is good in ensuring the lack of ambiguity in the system, but it runs the risk of treating individuals as ones and zeros, by applying the rule of law flatly to every scenario, despite the nuance of family dynamics and situations.

Labor's amendment goes much further than what has been recommended. The recommendations are clear. The presumption of equal and shared custody should be reformed and clarified. Many across the legal profession raised concerns during the consultation period when the exposure draft was released. The problem that Labor says it wants to address is the misunderstanding of the presumption. The misunderstanding arises because, as it is presently drafted, the presumption is often conflated with equal time. The explanatory memorandum refers to the ALRC report which found that the essence of presumption was useful and should be retained. It says that the problem is that parents can enter into negotiations based on incorrect assumptions about their entitlements.

Normally, you would address a misunderstanding or incorrect assumption by clearing up what you actually mean. But, instead of addressing this misunderstanding, Labor has decided to get rid of the presumption altogether. We lose the principle that, where safe, it is in the best interests of the child for parents to have joint decision-making responsibility about long-term issues. By opting for repeal instead of reform, we lose a clear statement on the face of the law saying it is in the child's interests for parents to cooperate and agree about how to raise their child. And, for the very many parents who negotiate in the shadow of the law, without lawyers or courts, that is a very significant change.

Ultimately the opposition welcomes the Family Law Amendment (Information Sharing) Bill. It is the culmination of work that started under the former coalition government to ensure that family courts have the information they need when making orders in parenting matters. The coalition has a strong record when it comes to improving the interaction between the child protection and family law systems. In the 2019-20 budget, funding was provided to co-locate state and territory family safety officials in family law courts to improve information sharing between the family law, family violence and child protection systems. And, after the ALRC handed down its report Family law for the future, the coalition agreed with the recommendation to implement a national information-sharing framework.

We know that far too many family law disputes involve family violence and we are all too aware of the devastating and long-term impact that that can have. And we know that situations can change quickly while a family law matter is progressing through the courts. The information that was put before the court six months ago might not be the information it needs to make the best possible orders today. A joined-up approach between the family law, family violence and child protection systems is one way to combat this situation, and this bill is a welcome development.

But I reiterate to those opposite: we should be seeking to foster unity wherever possible, even within these difficult spaces—national unity, social unity, financial unity, familial unity. Let's not continue to drive ideological wedges into every bastion and tier of our society to undermine the pillars with which our society is built, rejecting tradition, even the good elements, for the sake of progressivism, but instead take a genuine approach to considering what works and what doesn't. The past is not malleable clay to be revised on present beliefs. It's a reminder of who we were and who we can become—the good and the bad. It is a powerful teacher if we listen to it. We shouldn't forget that which makes us uncomfortable, or we will most certainly make the same mistakes again. This legislation provides an opportunity for reform, but we mustn't throw the baby out with the bathwater.