Simon Birmingham (SA, Liberal Party, Shadow Minister for Foreign Affairs) Share this | Hansard source

I appreciate the opportunity to contribute in this debate on the Family Law Amendment Bill 2023 and Family Law Amendment (Information Sharing) Bill 2023. At the outset I want to re-emphasise some of the points made by Senator Paterson and, I know, many other contributors to this debate, about the importance and sensitivity of the issues that are under consideration through this legislation and in general through the family law system. As parliamentarians we all balance responsibility and workload between work in this chamber, in this parliament, in committees and other functions of this parliament, which are ultimately about the drafting and consideration of legislation, of policy and of complex issues and how we seek to achieve the best possible outcomes for the public. We balance that work alongside our responsibilities as senators for different states and territories of Australia, responsibilities for our constituents and responsibilities to engage with care and consideration as those constituents bring their concerns to us.

One of the unique things I've noticed over what is now a longish period of time in this place, an observation about constituents who come to see senators, is that often they are the most challenging of constituent circumstances. Sometimes they will have already been to see their local MP and have raised their concerns through their local MP as well as through other arms or agencies of government that might be available to them. By the time they get to a senator's office their problems are quite often intractable and deeply entrenched, very challenging and have taken a huge personal toll on the individuals concerned.

Of course some of the most tragic of those can be in relation to the family law system. In those cases we see people whose cases have dragged on for many, many years, who have pursued many appeal processes and who have often suffered enormous financial detriment and harm during those proceedings. We also have to be mindful of the personal detriment and harm caused. The old adage that justice delayed is justice denied is applicable in all forms of legal procedure and consideration but perhaps especially so in dealing with family law cases that relate to child custody and access issues. As weeks turn to months and months turn to years, a child's life progresses and moves on, and delays and challenges in the justice system can ultimately mean that family relationships are changed forever through some of the most trying and difficult times in an individual's life and some of the most fast-moving times in a child's life. That's why consideration of the matters brought forward in this legislation is important and why it's also important that there is deep and thorough consideration given to changes to our family law framework in Australia.

Overwhelmingly, most Australians navigate separation and the financial, child custody and access issues that come with it without having an ultimate determination by a court of law. We should welcome and encourage that, because, to ensure that justice is not delayed, that the impact upon children is minimised and that they have access to loving, caring, responsible parents and family members in their lives, it's important for us to have a system that incentivises people to make their own determinations and to resolve matters as quickly and succinctly as possible.

The coalition is very clear that some of the measures in the bills before us are welcome. We see that they add to and clearly complement the work of our family law system. But, in other areas, we do have concerns, which have been expressed by my colleagues and explored through Senate committee processes—concerns that changes have not been adequately considered and consulted upon or create risks that could ultimately lead to delays, case increases or challenges through the system. These are things that ought to be avoided and that this chamber ought to give serious consideration to as amendments and proposals are considered through the committee stage of this legislation.

Firstly, I'll go to the good news, the part where our support is very clearly on the record and unqualified, and that is in relation to the Family Law Amendment (Information Sharing) Bill. We welcome this bill. It's a culmination of work that was started under the previous government to ensure that family courts have the information they need when making orders in relation to parenting matters. We believe that we have a strong record when it comes to improving the interaction between the child protection and family law systems. When we speak about the paramount interests and wellbeing of the child, there can be nothing greater than ensuring child safety and therefore ensuring that the intersection between the family law and child protection systems is a strong and well-integrated one.

In the 2019-20 budget, our government provided funding to co-locate state and territory family safety officials in family law courts to improve the information sharing between the family law, family violence and child protection systems. Further, after the Australian Law Reform Commission handed down its report Family law for the future, the coalition government at the time 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 it can have. The more quickly, simply and clearly disputes are able to be resolved, with full information about any family violence, the more we can manage to minimise that impact on all parties but especially on children.

We also know that situations can change quickly while a family law matter is progressing through the courts. Information that was put before a court some months ago may not be the information that can best inform orders made by that court at the time it is finalising them. Therefore, joining up a coordinated approach between the family law, family violence and child protection systems is a critical way to combat this situation, and the bill is a welcome development.

The national information sharing framework was intended to guide the sharing of information between the family law, family violence and child protection systems. This is critical to ensure the safety, welfare and wellbeing of families and children. I'm pleased that it is work that has progressed in partnership with jurisdictions, the Standing Council of Attorneys-General and its successor bodies. In November 2021 all jurisdictions endorsed the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems. The objective of that national framework was very simple—to promote the safety and wellbeing of adults and children affected by family violence, child abuse and neglect and support informed and appropriate decision-making in circumstances where there is or may be a risk of family violence, child abuse or neglect.

One of the features of the national framework was a shift away from subpoenas issued by the parties to a family law dispute. Instead, the framework moved towards targeted requests for information and court initiated orders. Rather than relying on parties to issue subpoenas, the framework is intended to empower courts to access family safety information. It proposed a new form of order, referred to as a short-form order, which is intended to ascertain whether a state or territory agency holds information that would inform decision-making and give an indication into the nature or extent of the risk or records held and the involvement of responding agencies.

The national framework envisaged that a broad range of state and territory agencies would be information-sharing agencies, expressly including state and territory child protection or child welfare departments and state and territory policing agencies and firearms registries. It also envisaged flexibility to include other bodies in the future. This could mean that corrections, youth justice and even non-government organisations, such as specialist family violence services, could participate in the scheme.

What we were seeking to do was to give effect to the simple principle that, if a person's safety is a concern in court proceedings, then all relevant information should be put before the court to ensure decision-making is fully informed and that that information should be accessed as easily, readily and speedily as possible. We are pleased to see this is reflected in the bill as introduced, which is why this component of the legislation before us enjoys strong support from the coalition.

We also recognise that other changes contained in the Family Law Amendment Bill are moved with good intentions. We join the government in recognising there are many issues this bill seeks to address. But, in too many places, we are concerned that the proposal put forward by the government in the bill do not always align with these problems or create the risk of further issues or problems. They also in some places go beyond recommendations made by previous reviews, which may not be universally supported by the legal profession or have other unintended consequences, especially where they have not been appropriately tested.

A very real concern is that, although we join with the government in recognising the issues and the problems to be tackled, the solutions in this bill in some cases may make things worse in terms of the efficiency, effectiveness or outcomes of our family law system, and that's why we urge the government to give serious consideration to the concerns that have been raised by colleagues. Those will be explored further during the committee stage.

A particular one that I wish to highlight is the presumption of equal shared parental responsibility. It's the most significant part of schedule 1 to the bill, which would repeal the presumption of equal shared parental responsibility that applies when courts make parenting orders. I can remember the debate that existed in relation to the introduction of this presumption. There had been widespread concern about how courts dealt with contact and residency issues for children after a relationship breakdown. There was mounting pressure and argument for there to be a change that sought to pursue a more equal approach in terms of the caring relationship of parents.

It was against that backdrop that the Howard government commissioned an inquiry into the family law system, chaired by Kay Hull. That report was remarkable in its recommendations. They were unanimous and bipartisan. They were united in recommending a rebuttal presumption of equal shared parental responsibility. Their recommendations were given effect by changes to the Family Law Act, passed in 2006, which I know you, Acting Deputy President Chisholm, paid close attention to in the other place at the time.

Those reforms said that courts must apply a presumption that it is in the best interests of the child for there to be equal shared parental responsibility. Importantly, they were clear that the presumption does not apply in circumstances where there is abuse or family violence and that it is not a presumption that parenting orders should allocate time to parents on a fifty-fifty basis; rather, it is about shared responsibility for decision-making about a child after a separation. They established important guardrails for courts to make parenting orders. This bill removes many of those guardrails that were introduced, and it is contrary to the recommendations of the Australian Law Reform Commission.

The ALRC said that it supports the idea that a presumption of shared parental responsibility serves as a good starting point for negotiations between parents and recommends that the concept be retained. I don't have time remaining to go through the details of our concerns or the concerns of many submitters to this inquiry who backed in the ALRC view and the coalition view that it would be better to retain this presumption. But it is a critical one that has helped, I believe—as do many others—to drive parents to resolve issues outside of the court process and to do so in ways that are considerate of each other whilst ultimately retaining the safeguards to ensure that all outcomes still put the interests of the child as the paramount consideration. So I urge the government to think carefully and to be open-minded in considering changes, particularly in relation to this issue and some of the others raised by my colleagues.