Alex Antic (SA, Liberal Party) Share this | Hansard source

I rise to speak in relation to the Family Law Amendment Bill and the Family Law Amendment (Information sharing) Bill 2023, which are before the Senate this morning. I have concerns about the simplified list of considerations proposed by the government in this bill. As usual, Labor's approach to issues that require nuance and precision. Especially given that this legislation deals with the breakdown of families in exceedingly traumatic circumstances it is imprecise and heavy-handed, creating more and not less confusion.

Labor's revised list requires the court 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 where it is safe to do so'. However, the list does not require the court to consider whether the benefits of a 'meaningful' relationship, as is presently the case. The word 'meaningful' has been entirely removed. This is a subtle but profound change that could see children not being given the opportunity to have a meaningful relationship with one parent as this would no longer be a priority in the legislation. Of course, the term 'meaningful' requires careful definition, but it at least signals that the Australian legal system recognises that it is important—indeed, vital—for children to have a meaningful relationship with both parents. Labor's amendment seems destined to lessen the importance of and I suspect it will make it even more difficult for fathers to have meaningful relationships with their children when families break down, as is presently the case.

This odd decision to delete the word 'meaningful' also signals, for the majority of separating parents who do not go to court and who are not represented by lawyers but who make decisions in the shadow of the law, that a child's relationship to the parents does not need to be meaningful. For example, a wife who leaves her husband might feel more emboldened to lessen the presence of the child's father or vice versa. A supervised visit once a month might be a relationship, but it seems that it would fall short of a test of enduring a meaningful relationship. Again, this is complicated and perhaps somewhat semantic, but why the change?

These amendments also carry implications for extended family networks, because Labor's list says that the court needs to consider not just the benefits to the child of a relationship with parents but also the benefit of a relationship with others who are significant to the child. Relationships with grandparents, aunties and uncles, cousins or stepsiblings may be of great importance to children. With this amendment, the court need not consider the benefits of a meaningful relationship with those people, only the benefits of 'a' relationship. This could mean that children end up having a brief supervised visit with extended family members as opposed to meaningful time.

Labor are essentially lessening the significance of family relations in this bill at a time when many Australians feel the family is already under attack and being undermined. It's always tricky to rely on words like 'meaningful' when you are dealing with legislation and legislative reform, especially with sensitive topics such as this. But it is quite evident that this particular adjustment is downplaying the importance of family relationships and children's lives. Bodies like the Law Council of Australia have expressly raised this as an issue which should be corrected.

Furthermore, the most significant part of schedule 1 would repeal the presumption of equal shared parental responsibility that applies when courts make parenting orders. Some history is needed here. The introduction of that presumption was a triumph of bipartisanship and sensible reform under the Howard government. Prior to 2003, there was widespread concern about how courts dealt with contact and residency issues for children after a relationship had broken down following a divorce. The way the courts approached those issues left many parents feeling excluded from their children's lives after separation, and it often resulted in the debate turning away from the benefits children derived from a positive and caring relationship with both mother and father and instead focusing on arguments concerning children having equal time with each parent—which is not necessarily the same thing, as any child of a divorce would tell us.

Against that backdrop, Prime Minister Howard commissioned an inquiry into the family law system which resulted in the landmark report titled Every picture tells a story. That report was a great accomplishment, and its recommendations were unanimous and bipartisan. It involved a roll call of Labor luminaries such as Julia Irwin, the Hon. Graham Edwards, Jennie George AO, the Hon. Roger Price and Harry Quick. These MPs joined coalition members of the committee to work through the issues over a number of years, and they were united in recommending a presumption of equal and shared parental responsibility. The Liberal and Labor parties joined together to work through a complex and important issue, relying on moral principles and common sense as their guide. Their recommendations were given effect by changes to the Family Law Act passed in 2006 under the Howard government.

Among other things, those reforms said the courts must apply a presumption that it's in the best interests of the child for there to be equal and shared parental responsibility. Of course, the presumption does not apply in circumstances where there is abuse or family violence. It's not a presumption that parenting orders should allocate time to parents on a fifty-fifty basis; rather, it's about the shared responsibility that parents have for the decision-making about their child after separation. One parent's perspective must not be discarded unjustly. Both parents' voices must be heard and respected.

This bill removes many of those guiderails introduced in 2006, contrary to the recommendations of the ALRC. 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 concept be retained.

However, the ALRC noted that 'in practice, parental responsibility has often been conflated with the concept of equal time care arrangements for children, which could detract from a focus on what is in the child's best interests'.

This led the ALRC to recommend that the wording of the relevant provisions be clarified to ensure that the courts and parents understand that parental responsibility is not necessarily the same thing as spending an equal amount of time with parents. A child might spend a week at their mother's house and a week at their father's house, but this doesn't mean both parents are sharing equal responsibility or jointly making major decisions. The ALRC recommended 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. Both phrases express the concept of each parent taking responsibility for their children's lives while respecting the view of the other parent, meaning they must strive to share responsibility and cooperate to the best of their abilities.

The joint select committee inquiry into Australia's family law system set up by the former coalition government investigated this question, and the committee expressly considered the ALRC recommendation about the presumption of equal shared parental responsibility and acknowledged the presumption of equal shared parental responsibility and how it is often conflated with equal time. They recommended amending the words of the presumption 'to address the current misunderstanding that the provision of equal shared parental responsibility equates to equal time with the children'. In classic Labor fashion, their amendment goes much further than what's been recommended and entirely misses the point. The ALRC's recommendations are clear: the presumption should be reformed and clarified.

Many across the legal profession raised concerns during the consultation process on the exposure draft after it was released. The Family Law Practitioners Association of Western Australia supported a change in labelling for the very reasons identified by the Australian Law Reform Commission. The Hunter Valley Family Law Practitioners Association submitted that the legislation should contain a presumption of the kind recommended by the ALRC.

The problem that Labor claims to be addressing is the misunderstanding of the presumption of equal shared responsibility as meaning equal time spent. Their explanatory memorandum refers to the ALRC report, which found that the essence of the presumption was useful and should be retained. Indeed, the explanatory memorandum states that the problem is that 'parents can enter negotiations based on incorrect assumptions about their entitlements'.

Normally you would address this misunderstanding and incorrect assumption by providing a concise definition to reduce that ambiguity, which in fact is what the ALRC recommended. But instead of doing that and providing clarity, Labor has decided to scrap the presumption altogether, which means we lose the principle that when it's safe and in the best interests of the child for parents to have joint decision-making responsibility about long-term issues, —something that Labor MPs strived to ensure was legislated in the Howard years—we therefore lose a clear statement of the law saying that it's in a child's interests for its parents to co-operate and agree about how best to raise their child. Again, the fundamental importance of the family and parental authority have been undermined, and children will suffer a trauma as a result, as one parent is denied the right to have a say in their life, even if they do get to spend equal time with them as the other parent.

For very many parents who negotiate in the shadow of the law without lawyers or courts, this is a profoundly damaging change. The genuine best interests of Australian children must be provided for, but Labor has taken a heavy-handed, sloppy approach that will do harm to children and to parents experiencing the awful trauma of family breakdown and divorce.