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

I will return to the presumption of equal shared responsibility and go through the body of evidence that does not support the repeal of the presumption. There is another report, and that's the report of the Joint Select Committee on Australia's Family Law System, which conducted an extremely comprehensive inquiry into the family law system and expressly considered the ALRC report recommendations. Just for the benefit of the Hansard record: with the exception of Labor members, as Senator Hanson will recall, the committee recommended that the presumption be amended as proposed by the Australian Law Reform Commission.

From the body of evidence, it certainly would appear that the Attorney-General's decision to repeal the presumption of equal shared parental responsibility was made for ideological and political reasons. He is very happy to refer to the very many reviews of the family law system that have taken place extensively over a number of years when it comes to equal shared parental responsibility, but none of the major reviews I have referred to actually recommends the repeal. Despite the Attorney-General implying to the Australian public that he has taken on board their feedback, the legislation that we have in front of us in no way accords with what those recommendations are.

I would also like to put on the record what our international peers are doing. They are saying that we should move towards shared parental responsibility. In fact, the Law Council of Australia, in its submission on the exposure draft of the bill, stated:

The Law Council notes that internationally, jurisdictions are increasingly moving towards a joint decision-making approach for shared parenting arrangements within their respective legislative frameworks. Some Constituent Bodies have consequently identified that the proposal in the Draft Bill to repeal the presumption of ESPR—

equal shared parental responsibility—

may have the effect of moving Australia away from this increasingly common approach and discouraging parents from attempting to consult with each other on decisions relating to the welfare of the child.

Again, this is nothing more and nothing less than a political and ideological approach taken by the Attorney-General which goes against so many of the reports, the weight of evidence, Professor Parkinson, the Law Council of Australia and certainly the trend of international jurisdictions.

I will just pick this up: you undertook a series of answers in response to Senator Hanson on this issue. The evidence that you put forward, other than stakeholder feedback, was a reference from the Australian Institute of Family Studies which said that the courts are making orders for parental responsibility even if there are safety concerns. I want to explore this, because the courts know—it is set out in the legislation—that the presumption does not apply if there are reasonable grounds to suspect abuse or violence. The courts also know, as is currently set out in the legislation, that the presumption is a rebuttable presumption. Therefore, presumably in all of the cases that the Australian Institute of Family Studies referred to, the courts would have had to consider the evidence and must have therefore concluded, given that (a) it's a rebuttable presumption and (b) it doesn't apply in the event, as I said, if there is a suspicion of violence or abuse, that there were no reasonable grounds to suspect violence or abuse. So, in your answer, Minister, this isn't, as you have put to Senator Hanson, an indicator that the presumption isn't working as intended. It is an indicator that, while safety concerns may well have been raised in the courts—they would have been duly considered—the courts have nevertheless found it appropriate to make an order for shared parental responsibility. So the evidence that you have given in response to Senator Hanson's line of questioning, the only way that your reference to the Australian Institute of Family Studies' evidence can in any way justify the repeal of the presumption, is that you are saying that the courts have consistently got it wrong. Can I clarify that is actually your evidence?