Nita Green (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I thank the Senate for the opportunity to continue to speak to this bill. It's an important bill for me to speak to for a number of reasons. I was speaking earlier about the inquiry of the Legal and Constitutional Affairs Legislation Committee, which I chair, into this bill. When I was previously speaking about this bill I referred, in particular, to evidence given to the committee by victims-survivors of family violence. They made some really powerful contributions to the inquiry. We also heard from experts from across the field of law—of family law in particular—and also from different groups with different views on this bill. But overwhelmingly the expert advice and evidence has supported the measures in this bill, and I want to bring that to the Senate's attention tonight.

One of the main characteristics of this bill and one of the main things that we will be talking about and, I assume, debating—because it seems like this is up for debate, which is disappointing—is the repealing of a presumption written into legislation that has caused unnecessary and sometimes harmful misunderstanding, and that's the equal shared parental responsibility presumption that was inserted into the Family Law Act by the Howard government. The reason we need to deal with this language and the way that this language is dealt with in the bill is really multifaceted, and I'd just encourage those senators who are seeking to contribute on this bill to really seek to understand how the language in this bill affects the way that people approach family law matters, even when they're not being dealt with in the court.

Many parents engaged in the family law process told us that there is a mistaken understanding that this presumption means that each parent will automatically have equal parenting time. Shared responsibility is, of course, important for children and parents. However, shared time might not always be in the best interests of the children, and of course it can never be in the case of family violence. This has never been the law, but the wording of the sections has led to significant confusion and, in some cases, agreements to unsafe parenting arrangements. Removal of these provisions will ensure everyone understands that the children's needs, rather than the parents', are really the focus of the act and the contribution that this amendment will make to it.

It's important for me to make this point. This amendment clarifies the intention of the law. It does not undermine the Family Law Act's recognition of the importance of children maintaining a relationship with both of their parents where it is safe to do so. Anyone who comes into this place and argues otherwise either is misinterpreting the amendment or really should go back and read it again. I would hate to think that anyone arguing against this change is doing so in a malicious way without understanding what is being asked of us here in the Senate.

We are also proposing to make amendments that will better align our domestic legislation with obligations under the Hague Convention on the Civil Aspects of International Child Abduction. Currently, Australian family law imposes a higher threshold for consideration of a child's objection to a return order. We heard some really horrific stories during the inquiry that really bring home the importance of this change. Under the proposed changes, a court may refuse to return a child if that child objects to being returned and is of an age and maturity where it is appropriate to take account of their views.

Of course, there's a range of minor technical changes that will complement these reforms to build a better and more streamlined family law system. Our legislation means that courts deciding parenting arrangements will be doing so within a more streamlined framework. This will be simpler for parents to understand and will reduce the court's costs and time. It will provide courts with a greater power to protect parties and children from the harmful effects of protracted and adversarial litigation which we have heard borne out so many times when it comes to matters dealing with family violence. Only three per cent of families have their parenting arrangements settled by the Family Court. With such small numbers using these frameworks, previous governments may have said that this change wasn't worth it. But, while 97 per cent of families settle arrangements outside of the court system, they're still guided by the law and the standards that we set here in this place. The law here sets a standard for the settlements and for the way that parents approach separations and custody arrangements.

I know that an unavoidable consequence of parental separation is heartache at best and more lasting trauma at worst. For kids, it's very disruptive and uncertain. Often everything that has formed their world view to this point changes—their living arrangements, how their parents relate to each other and other people, quality time with their caregivers, their understanding of conflict resolution, and their sense of safety and routine. This is really formative stuff for kids. This uncertainty can't be avoided, but we can make sure that laws that help bring an end to this period of time are in the best shape possible. Whether it is a mediatory framework to guide parents reaching an agreement between themselves or a more streamlined set of principles upon which judges and counsels can rely, we owe it to the kids to get this right, particularly those in situations of family and domestic violence. I note that consultation on the next tranche of reforms is imminent, and I look forward to engaging in that process.

I refer all senators back to the evidence given by Ms Michelle Baumann and Ms Charisse Hay, and I again repeat what Ms Hay said:

When the decision-makers remain ignorant to the abusive dynamics that place women and children in ongoing danger, the family law system fails to act in the best interests of the child.

Many of these changes seek to keep those kids safer, to make sure that our family law system is setting a standard we can rely on and build on to make sure that all children's interests are considered in the court system. That's what these changes seek to do, and anyone suggesting otherwise has not engaged with the content of this bill or the experts that say that that is what the bill does.

Gerard Rennick (Queensland, Liberal Party) Share this | Link to this | Hansard source

I rise to speak to the Family Law Amendment Bill 2023. Family breakups are one of the biggest reasons why men commit suicide and why they fall into depression. I know that fathers need their children and children need their fathers, and mothers need their children and children need their mothers. It's very important that we get family law as protective as we can. It's always a question, when it comes to these issues, though, of dealing with each case as it comes. If you're a judge in the family law courts, I can't imagine it would be an easy job; there must be many situations where it gets very difficult to decide the rights of the parents, the separated parents, the mother, father and the children. But, ultimately, we must always have the children's interests at heart first. But I think it's also important that, when we make changes or do anything, we make sure that both parents are given equal consideration.

That is why I have chosen to speak on this bill. I am concerned that this bill is going to repeal the presumption of shared parental responsibility. My understanding of shared parental responsibility is that it doesn't automatically guarantee that parents get fifty-fifty time with their children, and it has a carveout in the cases where there is violence involved—so if the father or the mother is violent, that presumption is quickly removed so that the child isn't exposed to anything that could be dangerous. Where it's key is when it comes to decision-making in regard to what happens with the child, and there are many circumstances whereby both parents—and I believe this—should have input in the decisions being made about the child's future.

Something I've encountered recently in the last 18 months, to do with the COVID vaccines, is that I was contacted by an enormous number of parents who had separated, and one parent wanted their child vaccinated and the other parent didn't want their child vaccinated. There obviously wasn't much I could do about it, but it was just one example whereby parents had different views as to what was in the best interests of the child. How you work these things out can't be easy, but we need to make sure that both parents have a say in those types of arrangements.

The other thing that I'm concerned about with this bill is the removal of the word 'meaningful' in the sense that a child should have a meaningful relationship with their parent. The existing act says that we should try and ensure that a child has a meaningful relationship with their parent. The word 'meaningful' is being removed. I don't really know why you'd need to remove the word 'meaningful'. With all these things, when you get into a court of law—I studied a master's of tax law, and you'd be amazed at the mental gymnastics, even in something as simple as tax and numbers, and how they can manipulate words to have different meanings. I think we should keep that word 'meaningful' in the Family Law Act because it is important that a child has a meaningful relationship with both parents, to the maximum extent possible. The cynic in me is fearful that taking this word out of the act may work against a certain parent. It may be used against a certain parent, and it may become harder for that parent to justify getting time with the child.

The other thing is: while I think that it is important that the child has a say in how much time they spend with the parents, ultimately we need to make sure that the provision to give greater power to the child to decide who they spend time with isn't used by one parent against another parent. I know fathers, in particular, who have lost their children, and when they lose their children they lose their purpose in life. It's a very important issue. I've had a great, wonderful life, but, as I've gotten older, nothing gives me a greater sense of purpose than being a father and spending time with my children.

I would ask Labor to reconsider some of these amendments. I'm not sure that they're in the best interests of the entire family outfit, whether it's together or separated. Reconsider these amendments.

Tammy Tyrrell (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

The current family law system is broken. It's failing parents and, more importantly, it's failing kids. The Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023 will fundamentally change the way family law disputes are resolved by the courts. Children will now be at the centre of the family law system, and this is where they should be. Children aren't responsible for the actions of their parents. They're kids. They rely on their parents for food, shelter and everything in between. Children aren't the reason parents fight and break up. Children are powerless about who they live with and how long their visits can be. We owe it to people who are too young to make decisions for themselves to have their best interests front and centre when decisions are made about their future. I'm hopeful that the changes made by these bills will do just that.

The changes made by these bills are made in response to recent inquiries into the family law system, most notably by the Australian Law Reform Commission and the Joint Select Committee on Australia's Family Law System. The Family Law Amendment Bill makes a number of changes to the Family Law Act. Perhaps most importantly, it replaces the presumption of shared parental responsibility with a new paramount consideration for resolving family law disputes: the best interests of the child. I support this bill. The information sharing bill also makes changes to how information about family violence, child abuse and neglect is shared between state, territory and federal authorities and the courts. I also support this bill.

The government amendments to their own bills include statutory reviews of the changes made by both bills. These reviews were recommended by the Senate Legal and Constitutional Affairs Legislation Committee, and I think this is a good move. We need statutory reviews in place to see if the bills will actually work like we want them to. If they don't, we'll know about it; the reviews will guarantee that. If there is room for improvement we can make the necessary changes to ensure the family law system is operating as intended. I'm happy to support these government amendments, and I'm happy that they come to the table and listen to my concerns. When we first saw the statutory reviews, they were open-ended. They had a start date but not an end date. The risk with the way the government amendments were originally drafted was that the Attorney-General could decide to start but never complete a review. A report could be half written and never see the light of day, or there could be a draft report with some great recommendations that the government could sit on. Politics could prevent progress, and we don't want that.

I worked with the government to come to an agreement that the three-year reviews in both bills will have a 12-month time limit. This gives the reviewer enough time to ask all the important questions of the necessary people, but it also gives the parliament an assurance that the next government must present a report about the changes made by this legislation. That means that, if needed, we can improve the family law system to make it even better for all parties.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Climate Change and Energy) Share this | Link to this | Hansard source

I rise to speak on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. I'm sure most, if not all, in this chamber would agree that the family law system is one of the most crucially important policy areas that we have the power to legislate on. It has a direct and profound impact on Australians, both young and old, rich and poor. As such, it's paramount that we get it right, and it has only become more important. We know that divorce and separation are much more common today than perhaps a generation ago, which means more Australians are coming into contact with or being affected by family law. Given the immense emotional turmoil that is embedded within this difficult process, I think it is a given that we should be aiming for a system that resolves disputes as quickly and cleanly as possible. At the centre of our policy formation should be the welfare and the flourishing of our children. They don't get a say in a couple's decision to split, and they are the most vulnerable. At a time when stability is important for a young child's development, their world can be turned upside down, so we must prioritise their best interests.

The coalition welcomes some of the measures in these bills, particularly the information sharing bill, and we do acknowledge good faith and the noble intentions of those opposite in seeking to do the right thing by Australians going through this difficult process. However, we do have some concerns that the proposed solutions either overreach or overcorrect problems or are simply untested and therefore contain too many unknowns to blindly support. In some cases, the government has gone well beyond recommendations made by previous reviews, which is not supported by those in the profession and has not been road-tested on the ground. It's something we as legislators should be very cautious about, as I stated earlier, because we're dealing with a system that is meant to guide families through some of the most difficult parts of their lives.

In the parenting framework in schedule 1, namely when looking at the best interests of the child, we see that the most significant part of the schedule seeks to repeal most of the factors courts must consider when determining the best interests of the child. Whilst we agree with the sentiment, the confusing and difficult considerations—which run over three pages and almost 900 words—are difficult for parents and courts to navigate. These ought to be simplified and expediated, but there are some concerns that oversimplification can become detrimental to the spirit which the move to simplify seeks to achieve. Labor's revised list requires the courts 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, when it's safe to do so. The word 'meaningful' has been removed, which the coalition has concerns about. It changes the messaging around the quality of the relationships children ought to be exposed to in this scenario. A supervised visit once a month may well be 'a relationship', but it is not a meaningful relationship, and this has deep implications for extended family networks. The list says the court needs to consider not just the benefit to the child of a relationship with parents but also the benefit of a relationship with others who are significant to the child. This includes grandparents, aunts and uncles, cousins or stepsiblings, which may be hugely important. When we place the child at the centre, safety is of course the No. 1 priority, but I do believe emotional, psychological and even spiritual flourishing in some cases are deeply important to the healthy development of a child and should not be overlooked. Bodies like the Law Council of Australia have expressly raised this as an oversight which should be corrected.

We also note concerns about the court's consideration of any views expressed by the child. In principle it is appropriate that the child's views should be heard, considered and respected, but we raise concerns that the provision, as drafted, could encourage parents to coach or pressure children, and it's a concern that is shared by the profession. Labor's simplified list also requires the courts to consider what arrangements would promote safety of the child and persons who care for the child, but surprisingly the list, as introduced, does not require the court to consider existing family violence orders and the basis on which they were made. This is an issue that we in the coalition raised during the committee process. It is not a departure from the existing practice, where things like family violence orders are usually considered, but it is surprising, and the failure to add it adds weight to our concerns about the attempts to ram this bill through without any real attempt to scrutinise the bill or negotiate bipartisan support.

There is continued ambiguity in the simplified list with regard to the statement 'anything else that is relevant to the particular circumstance of the child'. As it stands, on the face of the statute, there's no guidance about the child's maturity level or level of understanding; whether a parent has been engaged in parenting in the past, including their financial obligations to maintain the child; the likely impact of any change in circumstances; and the practicalities of any arrangement. These could be referred to in the legislative notes, as some in the profession have suggested. We hope and trust that the courts will take these into account.

Further to this, schedule 1 of the bill drastically cuts the objects and principles of the parenting framework in the Family Law Act. It repeals objects and principles that have guided families and courts for many years which are set out in section 60B of the act. The explanatory memorandum says that, despite appearances to the contrary, the intention is not to lose these objects and principles. It says:

The repeal and substitution of section 60B does not indicate that the repealed objects and principles are no longer relevant. Rather, the intention is to simplify the objects to better assist with the interpretation of Part VII and avoid duplication with section 60CC which sets out what the court must consider when determining what is in the best interests of the child.

The problem is the message that the repeal sends, particularly when viewed as part of a larger package of changes to schedule 1.

As the act currently stands, the intent of parliament is clear. Summarised, it says that the parenting framework intends to ensure children have the benefit of both of their parents having a meaningful involvement in their lives where it is in the best interests of the child; to protect children from abuse, neglect and family violence; ensure children receive adequate and proper parenting; and ensure that parents fulfil their duties and meet their responsibilities. These things are not controversial.

There are also some general principles that underlie those objects. Paraphrased, they say that, except where it is contrary to a child's best interests, children have a right to know and be cared for by both their parents; children have a right to spend time and communicate with their parents and others who are significant to them such as grandparents and other relatives; parents jointly share duties and responsibilities for raising children; parents should agree about the parenting of their children; and children have a right to enjoy their culture. Again, these should not be controversial, and the Attorney's own explanatory memorandum says they are still relevant. If they are still relevant, they should stay in the bill.

The risk is that, when read in conjunction with other changes to the bill, the overwhelming message is that the parliament is reversing its support for principles when guiding separating parents. At law, the words in the explanatory memorandum will only be used to determine the meaning of the law if a provision is ambiguous or obscure or if the ordinary meaning on the words of statute lead to a result that is manifestly absurd or unreasonable. But perhaps more importantly, we all know that, when parent recreation separating, they won't go to the explanatory materials. They won't dive into a 91-page explanatory memorandum about an amending bill, only to be told that some principles that were previously in the law continue to be relevant. Most families will never go to court but will make decisions in the shadow of the law, as we heard in the committee.

If we as a parliament agree that separating parents should share duties and responsibilities and cooperate to raise their children, we should say so. Those things should appear on the face of a statute where people can read them. Otherwise, we run the risk of short-changing the Australian people. It is understandably a very difficult balance to strike. Objective legalism is good in ensuring the lack of ambiguity in the system, but it runs the risk of treating individuals as ones and zeros, by applying the rule of law flatly to every scenario, despite the nuance of family dynamics and situations.

Labor's amendment goes much further than what has been recommended. The recommendations are clear. The presumption of equal and shared custody should be reformed and clarified. Many across the legal profession raised concerns during the consultation period when the exposure draft was released. 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. The explanatory memorandum refers to the ALRC report which found that the essence of 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.

Normally, you would address a misunderstanding or incorrect assumption by clearing up what you actually mean. But, instead of addressing this misunderstanding, Labor has decided to get rid of the presumption altogether. We lose the principle that, where safe, it is in the best interests of the child for parents to have joint decision-making responsibility about long-term issues. By opting for repeal instead of reform, we lose a clear statement on the face of the law saying it is in the child's interests for parents to cooperate and agree about how to raise their child. And, for the very many parents who negotiate in the shadow of the law, without lawyers or courts, that is a very significant change.

Ultimately the opposition welcomes the Family Law Amendment (Information Sharing) Bill. It is the culmination of work that started under the former coalition government to ensure that family courts have the information they need when making orders in parenting matters. The coalition has a strong record when it comes to improving the interaction between the child protection and family law systems. In the 2019-20 budget, funding was provided to co-locate state and territory family safety officials in family law courts to improve information sharing between the family law, family violence and child protection systems. And, after the ALRC handed down its report Family law for the future, the coalition agreed with the recommendation to implement a national information-sharing framework.

We know that far too many family law disputes involve family violence and we are all too aware of the devastating and long-term impact that that can have. And we know that situations can change quickly while a family law matter is progressing through the courts. The information that was put before the court six months ago might not be the information it needs to make the best possible orders today. A joined-up approach between the family law, family violence and child protection systems is one way to combat this situation, and this bill is a welcome development.

But I reiterate to those opposite: we should be seeking to foster unity wherever possible, even within these difficult spaces—national unity, social unity, financial unity, familial unity. Let's not continue to drive ideological wedges into every bastion and tier of our society to undermine the pillars with which our society is built, rejecting tradition, even the good elements, for the sake of progressivism, but instead take a genuine approach to considering what works and what doesn't. The past is not malleable clay to be revised on present beliefs. It's a reminder of who we were and who we can become—the good and the bad. It is a powerful teacher if we listen to it. We shouldn't forget that which makes us uncomfortable, or we will most certainly make the same mistakes again. This legislation provides an opportunity for reform, but we mustn't throw the baby out with the bathwater.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

I also rise to make a contribution on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. As senators and members know well, family law matters that our electorate offices have to deal with are some of the most difficult and distressing constituent cases that we deal with. It is a reality of modern life, whether we like it or not, that family separation occurs. The vast majority of the thousands of those cases that happen each year happen a long way away from the formal legal system and never find their way to the courts. But some of the constituents who we deal with who are the most agitated and distressed and have the highest expectations of our assistance are those who do find themselves in the formal legal system, in the courts, and have a judgement about a family separation that is not to their satisfaction. It is incumbent on us as legislators to do the best we can to design a system which facilitates that in the smoothest and least confrontational way possible. We can never design a system which is so perfect that we will never have people who feel like they are on the wrong side of a family law judgement. There will always be those, in the complexities of the realities of life and in the messiness of family breakdown, who believe that they were hard done by, but our objective as legislators should be to design a system which minimises that as often as can be the case.

The coalition welcomes a number of measures that are in these bills, and in particular in the information-sharing bill, but we are concerned that in the Family Law Amendment Bill there are issues which are right to be recognised but the solutions are either untested, unproven, uncertain and could have unintended consequences or, in the view of the coalition, go too far. We acknowledge the good intentions of the government in this instance. We don't believe they're setting out with ill intentions. They are trying to fix a system which is imperfect and make it better. We recognise that a lot of those issues need a solution. In too many cases, though, we believe that the solutions being proposed by the government don't align well with the problems. They go beyond recommendations made in previous reviews. They are often not supported by the profession. We are concerned that they will have unintended consequences, or that they've not been adequately road-tested with communities on the ground and those that will have to live with the consequences of the new system that the parliament puts in place. Our real concern is that the solutions in this bill may, in fact, unintentionally make things worse for Australian families. That's something we should be very cautious about, particularly when we are dealing with a system involving people dealing with the most difficult decisions and issues in their life.

The most significant part of this schedule—schedule 1, part 1—would repeal most of the factors that the courts must consider when determining the best interests of the child. That list of factors is currently long, but there are two primary considerations and then 14 additional considerations. The list runs over three pages and has almost 900 words. It's confusing and difficult for parents and courts—we acknowledge that. It should be simplified. That is a worthy objective. But there are real concerns that this new, simplified list of considerations in the proposed bill will have some unintended consequences.

Take, for example, the 'meaningful relationship' with parents and other significant people. Labor's new list requires that a court only 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. The list does not require the court to consider the benefits of 'a meaningful relationship', as it presently the case. You only need to work through a few scenarios to see how profound that change could be. Losing the word 'meaningful' is a significant change. It sends important signals to the court about the type of relationship that is in the best interests of the child. But it also sends those signals to the vast majority of separating couples, who do not go to court and who are not represented by lawyers, and—to use the phrase my colleague Senator Hughes used—instead make decisions in the shadow of the law.

Actually, a lot of what we do as legislators is about setting social norms and habits and the way in which people deal with things. Often it's the case that our legislation is only tested once or twice in a case, and then that precedent is applied by lawyers advising their clients. This is not unique to family law; it's common in many areas of law. So we should be really sensitive to the signals that we send and not imagine that it will be always a court determining these factors. It will often be lawyers advising their clients about the implications of the changes that we've made. That's why Senator Hughes was referring to 'the shadow of the law' and the implication.

In this case, this particular change sends a signal about the quality of the relationship between the child and the relevant person. A supervised visit for once a month, for example, might constitute 'a relationship', but it's obviously not a meaningful relationship, particularly if it's for one of the parents. It, potentially, has significant implications for extended family networks, because the list also says that the court needs to consider not just the benefit to the child of a relationship with parents, but also the benefit of a relationship with others who are significant to the child. For some children, relationships with grandparents, aunties and uncles, cousins and step-siblings may be hugely important, but the court doesn't need to consider the benefits of a meaningful relationship with these people, only the benefits of a relationship. Bodies such as the Law Council of Australia have raised this as an issue which should be corrected. In our view, it is an oversight in the legislation that should be corrected, as well.

Another issue is the views expressed by the child. The legislation requires the court to consider any views expressed by the child. In principle, this is, of course, appropriate. Children must be heard. But, as drafted, the provision could encourage parents to coach or place pressure on a child. This is a concern that has also been raised by the profession, and it is an accusation very commonly made—fairly or unfairly; truthfully or falsely—in family separation disputes. One parent alleges that the other parent has coached a child to have a particular view and say particular things. It would be a perverse and concerning unintended consequence if the new system actually incentivised parents to do so—that is, incentivised them, by saying that the views expressed by the child must be taken into consideration by the court, to try to coach the child to make a contribution that is favourable to a decision they're seeking from the court. That would be perverse and make family separations even more difficult than they already are.

Another issue is the arrangements that promote safety. Labor's simplified list requires that the court consider what arrangements would promote safety of the child and each person who has care of the child. Surprisingly, the list as introduced does not require the court to consider existing family violence orders and the basis on which they were made. This is an issue that the coalition raised during the committee process. It is not a departure from existing practice, where things like family violence orders are usually considered, but it is surprising, and the failure to include it adds weight to our concerns about the attempts to ram through this bill without any real attempt at scrutinise or to negotiate bipartisan support.

It's also worth noting the concern raised by some in the profession that Labor's list risks overlooking a number of important factors. The list does include 'anything else that is relevant to the particular circumstances of the child', but there is no guidance, on the face of the statute, about the child's maturity or their level of understanding; there is no guidance about whether a parent has engaged in parenting in the past, including the obligation to financially maintain the child; there's no guidance about the likely impact of any change in circumstances; and there is no guidance about the practicalities of any arrangement. These things could be referred to in legislative notes, as some in the profession have suggested, and we hope and trust that the court will take these into account.

Schedule 1 of the bill drastically cuts the principles of the parenting framework in the Family Law Act. It repeals objects and principles, which are set out in section 60B of the act, that have guided families and the courts for many years. The explanatory memorandum says that, despite appearances to the contrary, the intention is not to lose these objects and principles. It says:

The repeal and substitution of section 60B does not indicate that the repealed objects and principles are no longer relevant. Rather, the intention is to simplify the objects to better assist with the interpretation of Part VII and avoid duplication with section 60CC which sets out what the court must consider when determining what is in the best interests of the child.

The problem is the message that the repeal of this section sends, particularly when it is viewed as part of a larger package of changes to schedule 1. As the act currently stands, the intent of the parliament is clear. It says that the parenting framework intends to ensure children have the benefit of both of their parents having a meaningful involvement in their lives, where it is in the best interests of the child; to protect children from abuse, neglect and family violence; to ensure children receive adequate and proper parenting; and to ensure that parents fulfil their duties and meet their responsibilities. Those things are not controversial.

There are also some general principles that underline these objects. Paraphrased, these say that, except where it's contrary to the child's best interests, children have the right to know and be cared for by both their parents; children have a right to spend time and communicate with their parents and others who are significant to them, such as grandparents and other relatives; parents jointly share duties and responsibilities for raising children; parents should agree about the parenting of their children; and children have a right to enjoy their culture. Again, these should not be controversial, and the Attorney's own explanatory memorandum says they are still relevant. But, if they are still relevant, why are they not in the bill and why can't they stay in the act? The risk is that, when read in conjunction with the other changes in the bill, the overwhelming message is that the parliament is reversing its previous support for principles which guide separating parents. At law, the words in an EM will be used to determine the meaning of the law only if a provision is ambiguous or obscure or if the ordinary meaning of the words of the statute lead to a result that is manifestly absurd or unreasonable.

Perhaps more importantly, we all know that when parents are separating they don't have the time, expertise or money to get across the explanatory materials. There is a 91-page EM, in the instance of the amendments to this bill. Frankly, most legislators participating in this space wouldn't have the time to read that, let alone most parents going through a difficult family separation.

As I said before, most families never go to court, and we hope that remains the case. It is not the object of an act like this for families to resolve their disputes in the court. Unfortunately, it's the reality that in some instances a dispute is not able to be resolved by negotiation and consent and it does end up in a court. Effectively, what that means is that those decisions are made based on the advice of lawyers—in the words of my colleague, in the shadow of the law. If we agree as a parliament that separating parents should share duties and responsibilities and that they should cooperate to raise their children, then we should say so. I don't think those are controversial propositions; I think they're quite reasonable propositions. Those things should appear on the face of the statute, where people can read them; otherwise, we risk giving the Australian people a misleading impression about the parliament's intention with this legislation.

Moving on to schedule 1, part 2 in the remaining time that I have, it repeals the presumption of equal shared parental responsibility that applies when courts make parenting orders. This particular change in the bill is one of the ones that has generated a lot of feedback and heat about this legislation. It is one of these issues which is contentious in family law matters. I won't go through the history available as to why that was put in. There is of course a case for change that can be made and has been made by others, including by the ALRC. But the ALRC report under the former government did not recommend the removal of these provisions. It said, in fact, that it served a good point for negotiations between parents and recommended that the concept be retained. It agreed in principle with the existing exceptions to that presumption, and it noted that in practice parental responsibility has often been conflated with equal-time care arrangements for children. This could detract from the focus on what is actually in the child's best interests.

That led the ALRC to recommend that the wording of the relevant provision should be clarified—not repealed; clarified. It recommended that 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. The joint select committee inquiry into Australia's family law system, set up by the former government, investigated this. It expressly considered that recommendation about the presumption of equal shared parental responsibility and acknowledged that the presumption is often conflated with equal time. The majority recommended amending the wording of the presumption to address this misunderstanding of the provision, rather than getting rid of it altogether.

We think that the proposed changes by the government in this instance go too far. They do not just reform and clarify it. They go much further than that. A number of submitters to the inquiry were concerned about the implications of this change.

In summing up, this is a complex area of law. We have no doubt that the government has proceeded with the best of intentions, but given the complexity, given the speed with which this has been legislated, the speed of the parliamentary inquiry and the apparent unwillingness to negotiate with the opposition about sensible bipartisan changes, we are concerned about the legislation as it stands. We hope that these issues that we're raising in this place can be corrected before we are required to have a vote.

Simon Birmingham (SA, Liberal Party, Shadow Minister for Foreign Affairs) Share this | Link to this | Hansard source

I appreciate the opportunity to contribute in this debate on the Family Law Amendment Bill 2023 and Family Law Amendment (Information Sharing) Bill 2023. At the outset I want to re-emphasise some of the points made by Senator Paterson and, I know, many other contributors to this debate, about the importance and sensitivity of the issues that are under consideration through this legislation and in general through the family law system. As parliamentarians we all balance responsibility and workload between work in this chamber, in this parliament, in committees and other functions of this parliament, which are ultimately about the drafting and consideration of legislation, of policy and of complex issues and how we seek to achieve the best possible outcomes for the public. We balance that work alongside our responsibilities as senators for different states and territories of Australia, responsibilities for our constituents and responsibilities to engage with care and consideration as those constituents bring their concerns to us.

One of the unique things I've noticed over what is now a longish period of time in this place, an observation about constituents who come to see senators, is that often they are the most challenging of constituent circumstances. Sometimes they will have already been to see their local MP and have raised their concerns through their local MP as well as through other arms or agencies of government that might be available to them. By the time they get to a senator's office their problems are quite often intractable and deeply entrenched, very challenging and have taken a huge personal toll on the individuals concerned.

Of course some of the most tragic of those can be in relation to the family law system. In those cases we see people whose cases have dragged on for many, many years, who have pursued many appeal processes and who have often suffered enormous financial detriment and harm during those proceedings. We also have to be mindful of the personal detriment and harm caused. The old adage that justice delayed is justice denied is applicable in all forms of legal procedure and consideration but perhaps especially so in dealing with family law cases that relate to child custody and access issues. As weeks turn to months and months turn to years, a child's life progresses and moves on, and delays and challenges in the justice system can ultimately mean that family relationships are changed forever through some of the most trying and difficult times in an individual's life and some of the most fast-moving times in a child's life. That's why consideration of the matters brought forward in this legislation is important and why it's also important that there is deep and thorough consideration given to changes to our family law framework in Australia.

Overwhelmingly, most Australians navigate separation and the financial, child custody and access issues that come with it without having an ultimate determination by a court of law. We should welcome and encourage that, because, to ensure that justice is not delayed, that the impact upon children is minimised and that they have access to loving, caring, responsible parents and family members in their lives, it's important for us to have a system that incentivises people to make their own determinations and to resolve matters as quickly and succinctly as possible.

The coalition is very clear that some of the measures in the bills before us are welcome. We see that they add to and clearly complement the work of our family law system. But, in other areas, we do have concerns, which have been expressed by my colleagues and explored through Senate committee processes—concerns that changes have not been adequately considered and consulted upon or create risks that could ultimately lead to delays, case increases or challenges through the system. These are things that ought to be avoided and that this chamber ought to give serious consideration to as amendments and proposals are considered through the committee stage of this legislation.

Firstly, I'll go to the good news, the part where our support is very clearly on the record and unqualified, and that is in relation to the Family Law Amendment (Information Sharing) Bill. We welcome this bill. It's a culmination of work that was started under the previous government to ensure that family courts have the information they need when making orders in relation to parenting matters. We believe that we have a strong record when it comes to improving the interaction between the child protection and family law systems. When we speak about the paramount interests and wellbeing of the child, there can be nothing greater than ensuring child safety and therefore ensuring that the intersection between the family law and child protection systems is a strong and well-integrated one.

In the 2019-20 budget, our government provided funding to co-locate state and territory family safety officials in family law courts to improve the information sharing between the family law, family violence and child protection systems. Further, after the Australian Law Reform Commission handed down its report Family law for the future, the coalition government at the time agreed with the recommendation to implement a national information-sharing framework. We know that far too many family law disputes involve family violence, and we are all too aware of the devastating and long-term impact that it can have. The more quickly, simply and clearly disputes are able to be resolved, with full information about any family violence, the more we can manage to minimise that impact on all parties but especially on children.

We also know that situations can change quickly while a family law matter is progressing through the courts. Information that was put before a court some months ago may not be the information that can best inform orders made by that court at the time it is finalising them. Therefore, joining up a coordinated approach between the family law, family violence and child protection systems is a critical way to combat this situation, and the bill is a welcome development.

The national information sharing framework was intended to guide the sharing of information between the family law, family violence and child protection systems. This is critical to ensure the safety, welfare and wellbeing of families and children. I'm pleased that it is work that has progressed in partnership with jurisdictions, the Standing Council of Attorneys-General and its successor bodies. In November 2021 all jurisdictions endorsed the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems. The objective of that national framework was very simple—to promote the safety and wellbeing of adults and children affected by family violence, child abuse and neglect and support informed and appropriate decision-making in circumstances where there is or may be a risk of family violence, child abuse or neglect.

One of the features of the national framework was a shift away from subpoenas issued by the parties to a family law dispute. Instead, the framework moved towards targeted requests for information and court initiated orders. Rather than relying on parties to issue subpoenas, the framework is intended to empower courts to access family safety information. It proposed a new form of order, referred to as a short-form order, which is intended to ascertain whether a state or territory agency holds information that would inform decision-making and give an indication into the nature or extent of the risk or records held and the involvement of responding agencies.

The national framework envisaged that a broad range of state and territory agencies would be information-sharing agencies, expressly including state and territory child protection or child welfare departments and state and territory policing agencies and firearms registries. It also envisaged flexibility to include other bodies in the future. This could mean that corrections, youth justice and even non-government organisations, such as specialist family violence services, could participate in the scheme.

What we were seeking to do was to give effect to the simple principle that, if a person's safety is a concern in court proceedings, then all relevant information should be put before the court to ensure decision-making is fully informed and that that information should be accessed as easily, readily and speedily as possible. We are pleased to see this is reflected in the bill as introduced, which is why this component of the legislation before us enjoys strong support from the coalition.

We also recognise that other changes contained in the Family Law Amendment Bill are moved with good intentions. We join the government in recognising there are many issues this bill seeks to address. But, in too many places, we are concerned that the proposal put forward by the government in the bill do not always align with these problems or create the risk of further issues or problems. They also in some places go beyond recommendations made by previous reviews, which may not be universally supported by the legal profession or have other unintended consequences, especially where they have not been appropriately tested.

A very real concern is that, although we join with the government in recognising the issues and the problems to be tackled, the solutions in this bill in some cases may make things worse in terms of the efficiency, effectiveness or outcomes of our family law system, and that's why we urge the government to give serious consideration to the concerns that have been raised by colleagues. Those will be explored further during the committee stage.

A particular one that I wish to highlight is the presumption of equal shared parental responsibility. It's the most significant part of schedule 1 to the bill, which would repeal the presumption of equal shared parental responsibility that applies when courts make parenting orders. I can remember the debate that existed in relation to the introduction of this presumption. There had been widespread concern about how courts dealt with contact and residency issues for children after a relationship breakdown. There was mounting pressure and argument for there to be a change that sought to pursue a more equal approach in terms of the caring relationship of parents.

It was against that backdrop that the Howard government commissioned an inquiry into the family law system, chaired by Kay Hull. That report was remarkable in its recommendations. They were unanimous and bipartisan. They were united in recommending a rebuttal presumption of equal shared parental responsibility. Their recommendations were given effect by changes to the Family Law Act, passed in 2006, which I know you, Acting Deputy President Chisholm, paid close attention to in the other place at the time.

Those reforms said that courts must apply a presumption that it is in the best interests of the child for there to be equal shared parental responsibility. Importantly, they were clear that the presumption does not apply in circumstances where there is abuse or family violence and that it is not a presumption that parenting orders should allocate time to parents on a fifty-fifty basis; rather, it is about shared responsibility for decision-making about a child after a separation. They established important guardrails for courts to make parenting orders. This bill removes many of those guardrails that were introduced, and it is contrary to the recommendations of the Australian Law Reform Commission.

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 the concept be retained. I don't have time remaining to go through the details of our concerns or the concerns of many submitters to this inquiry who backed in the ALRC view and the coalition view that it would be better to retain this presumption. But it is a critical one that has helped, I believe—as do many others—to drive parents to resolve issues outside of the court process and to do so in ways that are considerate of each other whilst ultimately retaining the safeguards to ensure that all outcomes still put the interests of the child as the paramount consideration. So I urge the government to think carefully and to be open-minded in considering changes, particularly in relation to this issue and some of the others raised by my colleagues.

Slade Brockman (WA, Liberal Party) Share this | Link to 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—'

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Order! It being 8.00 pm, you will be in continuation.