Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

The reason we're in the committee stage is the opposition rightly requested, and put forward a motion today, to rearrange the government's business to ensure this opportunity was given to us tonight. Had we not put forward that motion, we would currently be heading towards a guillotine of the Family Law Amendment Bill 2023, one of the most important bills to come before the Australian Senate.

We had a number of questions that were asked yesterday in relation to the objects of the bill. I will commence my time in committee by putting a few remarks on the record for the benefit of the Hansard and for the benefit of my Senate colleagues. As I said, unfortunately this is not the committee stage we would have liked. It is an incredibly complex bill. It has an impact on the lives—in fact, it's one of the few bills that actually has a personal impact on people because thousands upon thousands of Australians are confronted with separation each year, and some of them have the unfortunate reality of having to go through the family law system.

When Australians look at this debate, as they may well one day, I would like them to know where the coalition stands on this bill. I have circulated, on behalf of the coalition, nine separate sets of amendments to the bill; I will be moving them tomorrow. But I would like to speak to them, and then interrogate the minister further in relation to the government's aspects of the bill.

The first set of amendments, on sheet 2066, relates to the objects and principles of the parenting framework and the factors a court must consider in determining the best interest of the children. It restores the objects clause of the parenting framework. Quite frankly, based on the answers we received from the minister yesterday, I cannot see how anybody in their right mind looking at the Hansard record from yesterday could possibly object to this. When you ask questions like, 'How does a mum or dad who are going through the family law system, who are going through one of the most distressing periods in their life, get guidance?'—because Labor are taking the objects out and are merely referencing, by incorporation, the UN Convention on the Rights of the Child—the answer from the minister is, 'It is online.' I would have thought, in the first instance, that it makes no sense to remove the objects. Secondly, given the contempt this government clearly has for mums and dads out there who quite frankly won't even know what the UN convention is, let alone that they've got to go to it to work out what the objects of the family law system are in determining their case in relation to access to their children—as we heard yesterday, when they actually get to the convention online there are 54 separate articles they need to then work through to actually work out which ones will then apply to their case. Our amendments will restore the objects clause of the parenting framework. They say that basic principles like 'parents should agree about the future parenting of their children' should appear on the face of the legislation. These are important signposts for unrepresented litigants and for separating couples who never get to a court at all.

This set of amendments also restores sense to the factors that determine the best interests of the child. It would require the courts to consider the benefit of a meaningful relationship—as we heard yesterday, the Australian government, through the Attorney-General, Mark Dreyfus, has removed the word 'meaningful'; we will have that restored—with the child's parents where it is safe to do so. It fixes a drafting error which would potentially encourage parents to coach their children. That is the evidence that has been presented and one of the issues that now arises. It also addresses significant legal concerns that the current drafting risks excluding information that is highly relevant to parenting orders. These changes are not controversial. They have been recommended by pre-eminent academics in the field, like Professor Patrick Parkinson, and bodies like the Law Council of Australia.

The second set of amendments, on sheet 2067, which I have circulated on behalf of the coalition, adopts the ALRC's recommended drafting on the best way to address misunderstandings of the presumption of equal shared parental responsibility. It accepts the evidence—as I said, the ALRC put this forward—that the presumption as currently drafted can often be confused with equal time. That is accepted. The coalition's amendments also accept the independent expert conclusion reached by the ALRC:

The ALRC 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.

The Attorney-General was not interested in what the ALRC said in relation to that.

The ALRC also said:

… the wording of the presumption should be clarified to avoid the confusion surrounding the term 'equal shared parental responsibility' and the conflation with equal time.

One might say this is practical, not ideological, but obviously not according to the Attorney-General, Mark Dreyfus.

The third set of amendments I have circulated, on sheet 2068, improves the drafting around the reconsideration of final parenting orders. It reflects the considered view of bodies like the Law Council of Australia by allowing the court to take account of the kind of matter that a parenting order deals with when determining whether to reconsider. Again, this is appropriate. The threshold should be higher for revisiting major issues, like a child's religion or the city they live in. For less significant issues, like variations to the amount of time a child spends with a person, it should be lower.

The fourth set of amendments, on sheet 2069, invites the government to start over in its simplification of the enforcement regime for parenting orders. It omits schedule 2 of the bill. We agree that the regime needs to be simplified, but the profession has been unimpressed with the legislation that the government has put forward and the proposal that the government wants the Senate to agree with. This is what one bar association—quite seriously, this is about Attorney-General Dreyfus's legislation—said to the Attorney-General: 'It replaces one complex mess with a different complex mess.' Well, that is great! I thought the whole point of the reviews that have been undertaken was to actually simplify the family law system. One complex mess has merely been replaced by the Attorney-General of Australia with another complex mess.

The fifth amendment, on sheet 2070, addresses the unintended consequences of the government's change to the definitions of 'relative' and 'member of the family' for Indigenous children. As drafted, the government's bill would significantly expand notification obligations, but only in relation to Aboriginal and Torres Strait Islander families. What would then happen is that the Family Law Act would become more onerous for that group than it is for any other Australians.

The sixth set of amendments, on sheet 2071, removes a provision that discourages any lawyer from taking on independent children's legal work. Why would you want to discourage lawyers from taking on this work? As drafted, the bill contains an implied threat that any lawyer doing such work could be subject to a hearing about their own conduct, adding an additional step in the litigation process and meaning additional time and costs for families.

I will return to the balance of the amendments when I'm next able to speak.

Yesterday, I was turning to the best-interests factors and a meaningful relationship with the child's parents. I'd again ask the minister to set the record. Do you agree it's in the best interests of a child to have a meaningful relationship with both parents where it is safe to do so?