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

That answer is completely at odds with the submission you have put to Senator Hanson. It is completely at odds with what the evidence shows in relation to what the courts take into consideration. Unfortunately, we have all of 35 minutes left and we are going to hit a hard marker. I have questions in relation to each of the schedules of the bill. So I just want to put on the record now some of the fundamental issues around the operation of the presumption of equal shared parental responsibility, because the weight of evidence would show this is nothing more and nothing less than an ideological and political decision taken by the Attorney-General. But what I do want to say is that there is unfortunately a significant amount of common ground here. We agree on many of the issues and problems dealt with by this bill, but we have different approaches to the solutions. This is not a partisan issue or a pointscoring exercise; it is a discussion about the best way to make our Family Law Act provide appropriately for the best interests of the children.

For the benefit of anyone listening in, and for future generations looking at Hansard, I want to be clear on the government's position and its rationale for the changes to the bill that we have been discussing in relation to the complete abolition by the government, recommended by the Attorney-General, of the presumption of equal shared parental responsibility. The presumption itself was introduced with the support of Labor, following a detailed, unanimous and bipartisan consideration of the actual issue. It's worth again being clear on exactly what the presumption is. The presumption the court applies is this:

… it is in the best interests of the child that the parents share equally the parental responsibility for the child.

This was a provision that the Labor Party supported. The explanation for that provision, as set out in the explanatory memorandum, was as follows:

The provision is intended to promote decision-making about major long-term issues by both parents, for the benefit of the child.

What we have now seen in this bill is the complete abolition of that. As presently written, the legislation explicitly says:

The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

I would hope that the government trusts the court to apply the presumption fairly and carefully, but we do arrive at a situation where, despite the body of evidence, the Attorney-General has decided to remove it altogether for an ideological and political reason, as I stated.

Unfortunately, we now have 33 minutes left. I will therefore turn to schedule 2. Schedule 2 of the bill rewrites division 13A of the Family Law Act. In its submission on the exposure draft of the bill, this is what the ACT Bar Association said:

While it is agreed that the current provisions in Division 13A are a complex mess and should be simplified, the ACT BA does not consider that the proposed changes would make the division easier to understand. They are, instead, a different complex mess.

That is the submission of the ACT Bar Association in relation to schedule 2 of the bill that we currently have before us. The ACT Bar Association also says this:

… ACT BA submits that the provisions should be reconsidered and consultation with the profession should occur before that reconsideration.

I ask you, Minister: why didn't the Attorney take up the generous and gracious invitation to rewrite schedule 2 in consultation with the profession? 'The profession' are people that read the law, I would hope apply it, get to understand it and then act on behalf of people in court. They are saying that we had one mess and—guess what!—you've replaced it with another mess.