Slade Brockman (WA, Liberal Party) Share this | Hansard source

I too rise to speak on the Family Law Amendment Bill. There are many challenges we face in this place in dealing with issues that perhaps aren't our first interest—not the reason that we entered the Senate or we entered parliament—and I must admit that this is one of them for me. I'm lucky enough to have grown up in a stable, loving household, but we must confront a world where that is not always the case and we must do our bests as legislators to try to get the balance correct in these very difficult legal areas. When you are dealing with family breakdown and weighing the rights of parents against those of children and of parents against parents, often in circumstances where agreement is difficult to reach, where there is conflict, it is not something that is easy to put into a simple legislative framework.

As a starting point, I think we must all acknowledge and pay tribute to those who work in that area as judges, arbitrators or counsellors. It is an extraordinarily difficult area of the law in which to work because it is just so very hard to weigh up the various competing requirements of custody, the welfare of children, the desires of parents and the complex family arrangements that can arise in this day and age. We have to get back to some principles and we have to believe in some basic fundamentals of what we wish to deliver, particularly, I think, for the children in those circumstances. In the end, ensuring that children are nurtured, protected and raised in a loving environment with, if at all possible, both parents being actively involved is just so important.

We absolutely understand that this bill has been moved with the best of intentions, and much of it we will support. In fact, we join with the government in recognising that many of the problems that are sought to be addressed in this bill are problems that confront Australians and the legal system, and they do need solutions. We do have concerns over some of the solutions proposed in this bill, and I wish to speak briefly about the area that Senator Birmingham was cogently going through, which is the presumption around parental responsibility and equal and shared parenting. I will get to that in a moment. But we do need to understand the potential for unintended consequences in this area. The signals sent by legislative changes in this area are important to the legal profession. They are important to the way families interact. They are important to the way parents perhaps approach these circumstances, so we do have to be extraordinarily careful about how we handle these very sensitive issues.

We acknowledge that it is difficult to test in this area. It is difficult to know how these changes are actually going to work in practice, but that's why we must be even more vigilant than normal to look for the unintended consequences, to look for the way that this is going to impact those who are probably going through, whether they are a parent or whether they are a child, one of the most confronting and difficult times of their lives. So those consequences of changes in language, changes to definitions, changes to whether particular approaches are within the legislation or merely within the guidance advice can actually make a fundamental difference to the way these issues play out in real life.

In the few minutes left to me this evening, I will go briefly to equal shared parental responsibility. I do fear that Labor's changes in this area have the risk of creating some uncertainty, potentially muddying the waters, and go further than the ALRC recommendation in this area. There was a clear recommendation from the ALRC that the presumption, as drafted, in the legislation previously should be changed to clarify it. Many across the legal profession raised concerns during the consultation on the exposure draft when it was released. The Family Law Practitioners Association of Western Australia in my home state supported a change in labelling for the reasons identified by the ALRC. The Hunter Valley Family Law Practitioners Association submitted that the legislation should contain a presumption of the kind recommended by the ALRC. The Family Law Practitioners Association of Queensland said the legislation removes a presently known pathway and questioned whether more known cases would be initiated on the question of parental responsibility alone. The Law Council of Australia noted the divergence of views among the profession.

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, and that is what the ALRC said should be clarified. The explanatory memorandum refers to the ALRC report, which found that the essence of the 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, so you have not a prescriptive recommendation from the ALRC but a very clear recommendation that said, 'Yes, there is a problem with what's currently in the legislation. Yes, we need to clean that up—'