James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Hansard source

I also rise to make a contribution on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. As senators and members know well, family law matters that our electorate offices have to deal with are some of the most difficult and distressing constituent cases that we deal with. It is a reality of modern life, whether we like it or not, that family separation occurs. The vast majority of the thousands of those cases that happen each year happen a long way away from the formal legal system and never find their way to the courts. But some of the constituents who we deal with who are the most agitated and distressed and have the highest expectations of our assistance are those who do find themselves in the formal legal system, in the courts, and have a judgement about a family separation that is not to their satisfaction. It is incumbent on us as legislators to do the best we can to design a system which facilitates that in the smoothest and least confrontational way possible. We can never design a system which is so perfect that we will never have people who feel like they are on the wrong side of a family law judgement. There will always be those, in the complexities of the realities of life and in the messiness of family breakdown, who believe that they were hard done by, but our objective as legislators should be to design a system which minimises that as often as can be the case.

The coalition welcomes a number of measures that are in these bills, and in particular in the information-sharing bill, but we are concerned that in the Family Law Amendment Bill there are issues which are right to be recognised but the solutions are either untested, unproven, uncertain and could have unintended consequences or, in the view of the coalition, go too far. We acknowledge the good intentions of the government in this instance. We don't believe they're setting out with ill intentions. They are trying to fix a system which is imperfect and make it better. We recognise that a lot of those issues need a solution. In too many cases, though, we believe that the solutions being proposed by the government don't align well with the problems. They go beyond recommendations made in previous reviews. They are often not supported by the profession. We are concerned that they will have unintended consequences, or that they've not been adequately road-tested with communities on the ground and those that will have to live with the consequences of the new system that the parliament puts in place. Our real concern is that the solutions in this bill may, in fact, unintentionally make things worse for Australian families. That's something we should be very cautious about, particularly when we are dealing with a system involving people dealing with the most difficult decisions and issues in their life.

The most significant part of this schedule—schedule 1, part 1—would repeal most of the factors that the courts must consider when determining the best interests of the child. That list of factors is currently long, but there are two primary considerations and then 14 additional considerations. The list runs over three pages and has almost 900 words. It's confusing and difficult for parents and courts—we acknowledge that. It should be simplified. That is a worthy objective. But there are real concerns that this new, simplified list of considerations in the proposed bill will have some unintended consequences.

Take, for example, the 'meaningful relationship' with parents and other significant people. Labor's new list requires that a court only 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, where it is safe to do so. The list does not require the court to consider the benefits of 'a meaningful relationship', as it presently the case. You only need to work through a few scenarios to see how profound that change could be. Losing the word 'meaningful' is a significant change. It sends important signals to the court about the type of relationship that is in the best interests of the child. But it also sends those signals to the vast majority of separating couples, who do not go to court and who are not represented by lawyers, and—to use the phrase my colleague Senator Hughes used—instead make decisions in the shadow of the law.

Actually, a lot of what we do as legislators is about setting social norms and habits and the way in which people deal with things. Often it's the case that our legislation is only tested once or twice in a case, and then that precedent is applied by lawyers advising their clients. This is not unique to family law; it's common in many areas of law. So we should be really sensitive to the signals that we send and not imagine that it will be always a court determining these factors. It will often be lawyers advising their clients about the implications of the changes that we've made. That's why Senator Hughes was referring to 'the shadow of the law' and the implication.

In this case, this particular change sends a signal about the quality of the relationship between the child and the relevant person. A supervised visit for once a month, for example, might constitute 'a relationship', but it's obviously not a meaningful relationship, particularly if it's for one of the parents. It, potentially, has significant implications for extended family networks, because the list also says that 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. For some children, relationships with grandparents, aunties and uncles, cousins and step-siblings may be hugely important, but the court doesn't need to consider the benefits of a meaningful relationship with these people, only the benefits of a relationship. Bodies such as the Law Council of Australia have raised this as an issue which should be corrected. In our view, it is an oversight in the legislation that should be corrected, as well.

Another issue is the views expressed by the child. The legislation requires the court to consider any views expressed by the child. In principle, this is, of course, appropriate. Children must be heard. But, as drafted, the provision could encourage parents to coach or place pressure on a child. This is a concern that has also been raised by the profession, and it is an accusation very commonly made—fairly or unfairly; truthfully or falsely—in family separation disputes. One parent alleges that the other parent has coached a child to have a particular view and say particular things. It would be a perverse and concerning unintended consequence if the new system actually incentivised parents to do so—that is, incentivised them, by saying that the views expressed by the child must be taken into consideration by the court, to try to coach the child to make a contribution that is favourable to a decision they're seeking from the court. That would be perverse and make family separations even more difficult than they already are.

Another issue is the arrangements that promote safety. Labor's simplified list requires that the court consider what arrangements would promote safety of the child and each person who has care of the child. 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 the coalition raised during the committee process. It is not a departure from existing practice, where things like family violence orders are usually considered, but it is surprising, and the failure to include it adds weight to our concerns about the attempts to ram through this bill without any real attempt at scrutinise or to negotiate bipartisan support.

It's also worth noting the concern raised by some in the profession that Labor's list risks overlooking a number of important factors. The list does include 'anything else that is relevant to the particular circumstances of the child', but there is no guidance, on the face of the statute, about the child's maturity or their level of understanding; there is no guidance about whether a parent has engaged in parenting in the past, including the obligation to financially maintain the child; there's no guidance about the likely impact of any change in circumstances; and there is no guidance about the practicalities of any arrangement. These things could be referred to in legislative notes, as some in the profession have suggested, and we hope and trust that the court will take these into account.

Schedule 1 of the bill drastically cuts the principles of the parenting framework in the Family Law Act. It repeals objects and principles, which are set out in section 60B of the act, that have guided families and the courts for many years. 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 of this section sends, particularly when it is viewed as part of a larger package of changes to schedule 1. As the act currently stands, the intent of the parliament is clear. 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; to ensure children receive adequate and proper parenting; and to ensure that parents fulfil their duties and meet their responsibilities. Those things are not controversial.

There are also some general principles that underline these objects. Paraphrased, these say that, except where it's contrary to the child's best interests, children have the 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. But, if they are still relevant, why are they not in the bill and why can't they stay in the act? The risk is that, when read in conjunction with the other changes in the bill, the overwhelming message is that the parliament is reversing its previous support for principles which guide separating parents. At law, the words in an EM 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 lead to a result that is manifestly absurd or unreasonable.

Perhaps more importantly, we all know that when parents are separating they don't have the time, expertise or money to get across the explanatory materials. There is a 91-page EM, in the instance of the amendments to this bill. Frankly, most legislators participating in this space wouldn't have the time to read that, let alone most parents going through a difficult family separation.

As I said before, most families never go to court, and we hope that remains the case. It is not the object of an act like this for families to resolve their disputes in the court. Unfortunately, it's the reality that in some instances a dispute is not able to be resolved by negotiation and consent and it does end up in a court. Effectively, what that means is that those decisions are made based on the advice of lawyers—in the words of my colleague, in the shadow of the law. If we agree as a parliament that separating parents should share duties and responsibilities and that they should cooperate to raise their children, then we should say so. I don't think those are controversial propositions; I think they're quite reasonable propositions. Those things should appear on the face of the statute, where people can read them; otherwise, we risk giving the Australian people a misleading impression about the parliament's intention with this legislation.

Moving on to schedule 1, part 2 in the remaining time that I have, it repeals the presumption of equal shared parental responsibility that applies when courts make parenting orders. This particular change in the bill is one of the ones that has generated a lot of feedback and heat about this legislation. It is one of these issues which is contentious in family law matters. I won't go through the history available as to why that was put in. There is of course a case for change that can be made and has been made by others, including by the ALRC. But the ALRC report under the former government did not recommend the removal of these provisions. It said, in fact, that it served a good point for negotiations between parents and recommended that the concept be retained. It agreed in principle with the existing exceptions to that presumption, and it noted that in practice parental responsibility has often been conflated with equal-time care arrangements for children. This could detract from the focus on what is actually in the child's best interests.

That led the ALRC to recommend that the wording of the relevant provision should be clarified—not repealed; clarified. 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. The joint select committee inquiry into Australia's family law system, set up by the former government, investigated this. It expressly considered that recommendation about the presumption of equal shared parental responsibility and acknowledged that the presumption is often conflated with equal time. The majority recommended amending the wording of the presumption to address this misunderstanding of the provision, rather than getting rid of it altogether.

We think that the proposed changes by the government in this instance go too far. They do not just reform and clarify it. They go much further than that. A number of submitters to the inquiry were concerned about the implications of this change.

In summing up, this is a complex area of law. We have no doubt that the government has proceeded with the best of intentions, but given the complexity, given the speed with which this has been legislated, the speed of the parliamentary inquiry and the apparent unwillingness to negotiate with the opposition about sensible bipartisan changes, we are concerned about the legislation as it stands. We hope that these issues that we're raising in this place can be corrected before we are required to have a vote.