Alex Antic (SA, Liberal Party) Share this | Link to 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.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

N (—) (): I rise to speak to the Family Law Amendment Bill. The legislation gives effect to several recommendations I have made as Deputy Chair of the Joint Select Committee on Australia's Family Law System, established after I lobbied then prime minister Malcolm Turnbull.

There is broad support for some of the changes contained in the legislation, and I will refer to this later. Some of them are changes I have been advocating on the select committee and in public for many years. No-one could argue against focusing on the best interests of children involved in family law cases. However, by removing the presumption of shared parental responsibility as a factor that must be considered in deciding custody arrangements, this legislation could well have the opposite effect.

This presumption has never been about equal time in child custody arrangements. It doesn't matter that it may have created this perception. The court and the legal profession have a duty to explain it and make sure that parents seeking resolutions in or outside of court do not labour under this misunderstanding. If they have not, then the failure is theirs and not that of the legislation. The presumption has always been about recognising the truth that when you are responsible for bringing a child into the world with someone else, you share equal responsibility for the child's care. This shouldn't be a controversial principle. Not if you think people should take responsibility for their actions, at any rate.

The introduction of the shared parental responsibility presumption was almost unanimously supported by this parliament in 2006. The Gillard Labor government kept the presumption in place when it modified the legislation in 2011. In 2020 Labor in opposition tried to remove it and failed. Today they're seeking to remove it again, despite expert warnings they should retain it. Former Family Court judge Professor Richard Chisholm warned the abolition of the presumption should not inadvertently bring Australia back to a time when mothers were granted primacy in court battles. He also warned that removing the presumption would bring back the old 80-20 model that underpinned an assumption that mothers would be responsible for the bulk of childcaring duties following a relationship breakdown. He recommended the legislation should stress the importance of continued involvement of both parents. I quote: 'It is important for the majority of children to continue the involvement of both parents after family separation. It is right that the legislation should stress this because it seems it was once assumed that it is enough for children to have one involved parent, with the other, typically the father, providing financial support and weekend entertainment.'

In his submission on the exposure draft of this bill, Emeritus Professor of Law at the University of Queensland Patrick Parkinson AM said the government had not made any reasonable case for what he called 'radical changes to the philosophy of part 7 of the act'. He warned of increased litigation, increased difficulty in resolving disputes and increased costs for parents and courts. Professor Parkinson noted these changes would unsettle the law and represented a fundamental change to the values that are expressed to underlie the family law system. He noted, 'An evaluation of the 2006 family law reforms by the Australian Institute of Family Studies found the philosophy of shared parental responsibility is overwhelmingly supported by parents, the legal system, professionals and service professionals.' For him, and for me, the most alarming aspect of the bill is the removal of this philosophy. The bill effectively deletes it, removing the need to ensure that children have the benefit of both their parents having meaningful involvement in their lives to the maximum extent consistent with the child's best interests; that children have the right to know and be cared for by both their parents; that children have a right to, on a regular basis, spend time with and communicate with both their parents and other people significant to their care, welfare and development, particularly grandparents; that parents should jointly share duties and responsibilities concerning the care, welfare and development of their children; and that parents should agree about the future parenting of their children.

I think it's arguable that this legislation contravenes the United Nations Convention on the Rights of the Child, which Australia signed and ratified in 1990. Article 7 of the convention says:

The child shall … have … as far as possible, the right to know and be cared for by his or her parents.

Article 9 says:

States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

Article 18 says:

States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.

I think family lawyers might want to brush up on their constitutional law and fit parents unduly denied access to their children might want to think about approaching the High Court to challenge the validity of this legislation, and I have heard that parents are considering taking out a class action with regard to this.

Evidence presented to the joint select committee included an analysis compiled by the North Dakota and Oregon state universities that concluded that fathers really do matter. It supported the importance of fathers being able to connect with their children through shared activities. It confirmed that fathers play an important role in the lives of children and the need for positive connections contributing to a child's wellbeing. It analysed data which showed that, where there were positive connections and communication with fathers, children were much less likely to have problems later in life, and it affirmed the need for courts to consider the positive contributions fathers can make to their children's lives. I note the bill still requires courts to consider the benefit to children of maintaining a relationship with both parents but, importantly, removes the term 'meaningful' as a descriptor of the relationship. Why? It's because the Albanese government has adopted the broken philosophy promoted by women's advocacy and domestic violence groups that children are only safe from violence in the care of their mothers. This denies evidence that women are more likely to commit violence against their children than fathers. There have been several high-profile cases in Australia documenting this fact. It denies evidence that 25 per cent of reported domestic violence is committed by women. They're effectively saying that shared parental responsibility makes it easier for violent men to insist on a post-separation parenting role. As Professor Parkinson points out, however, this is not supported by the evidence. In fact, the AIFS study found that many more fathers than mothers were concerned for their children's safety in shared parenting arrangements. This was borne out in evidence provided to the joint select committee inquiry into the family law system. Ultimately, the evidence was clear: the system is already heavily biased against fathers. The removal of shared parental responsibility increases the possibility of entrenching this bias.

The demonisation of Australian men is unjustified and needs to stop. Men are already overrepresented in homelessness, in jobs with high risk to safety, as victims of violent crimes and, tragically, in suicides. Many of these studies are associated with unfair and unjust family law outcomes from a system biased against fathers. The removal of shared parental responsibility carries a strong risk of even more unjust outcomes.

In principle I support some other parts of this bill. In the joint select committee inquiry I argued for, and I now support in particular, the emphasis on the wishes of the child and the requirement that independent children's lawyers, or ICLs, be required to learn and advocate the child's wishes. I have been advocating for many years that the child's wishes, where possible, be objectively considered by the courts. However, to do this in such a way that the wishes of children as young as five are objectively presented to the court will require specialist training for ICLs.

I also support the mechanism aimed at preventing the manipulation of the family law system—what this bill considers to be harmful proceedings. This is also something I've been advocating for many years—preventing people from using the system to attack or punish an ex-partner during acrimonious separations. However, it must be fairly and equally applied to both mothers and fathers. My fear is that it won't be fairly applied. Advocates for these changes—and I note Senator Rice's telling contribution to this debate—focus only on the rights of women and children and ignore the rights of men. That is the fear of good fathers mired in the family law system: unfair outcomes for them based on the violent behaviour of a few. A lot of women also provided evidence of bias against them in the system, but in my opinion it is mainly men who are denied fair access to see or spend time with their children.

There was clear evidence presented to the joint select committee that many mothers made unfounded or deliberately false allegations of violence against fathers. Ninety per cent of parents alleging child sexual abuse in contested hearings from 2012 until 2019 were mothers. In 90 per cent of these hearings, the judge found no risk of sexual harm to the child or children—90 per cent. In 25 per cent of these cases, the allegations were found to be deliberately misleading. In another 46 per cent of these cases, the allegations were mistaken. In 88 per cent of these cases, the allegations were not believed by the judge. In 62 per cent of these cases, the judge awarded shared parental responsibility or sole responsibility to the parent against whom the allegations were made. In 66 per cent of these cases, orders were made increasing parenting time with the parent against whom the allegations were made. This was confirmed by former Family Court judge Justice David Collier, who said allegations of child sexual abuse are being increasingly invented by mothers to stop fathers from seeing their children. He said:

I'm satisfied that a number of people who have appeared before me have known that it is one of the ways of completely shutting husbands out of the child's life.

In principle, I also welcome the government's support for extending the Lighthouse Project, but I am disappointed that the sensible changes I have proposed to the child support system were not reflected in these reforms. As Professor Parkinson has noted, the current system provides perverse incentives for primary caregivers to resist children spending more time with the other parent to avoid a reduction in the child support obligation. My recommendations would remove this incentive and make the system fairer and simpler, and, for the record, I'll list them: ensure parents aren't left with incomes below $27,000 per annum; assess salaries on a 38-hour working week; base child support on the number of children at the time of separation, not on additional children to other partners; assess residential costs individually and include family tax benefit in assessing incomes; exclude lump sums such as WorkCover, TPI or superannuation payments in assessing incomes; and have child support payments paid to a separate child support account, subject to scrutiny by Services Australia to ensure all child support is going to support the children.

Since being elected I've always fought for the law to treat Australians fairly and equally, regardless of gender, race, religion or other identities. This has been my motivation for working to reform Australia's broken family law system. It was my hope that the joint select committee inquiry would generate the evidence to back such reforms. The inquiry certainly achieved that, but I didn't count on the perverse motivations of others on the committee to drive the system into potentially greater conflict and unfairness. Families experiencing the system, both now and in the future, have my profound sympathies, because the chance of genuine reform has been squandered.

I will never stop fighting for fairness and for the best outcomes for children and families in the Australian family law system. I will be moving amendments to this bill—on domestic violence matters requiring proof, not just allegations, and on children's lawyers requiring further training—and I would like to see a sliding scale or a cap on legal costs. Too many parents out there are suffering because of this. This is a backward step, as I've said. It will just hurt those fathers who are already hurting from not being able to see their children, for no reason whatsoever. You're going to keep people going through the court system. Lawyers are going to make a lot of money out of this. I feel sorry for the children. You're not considering the children at all. You're a selfish bunch.

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

I rise to make a contribution in support of the Family Law Amendment Bill 2023 and the associated bill, and I do so in my capacity as Chair of the Legal and Constitutional Affairs Legislation Committee. I joined with my colleagues to inquire into and report to the Senate on this legislation.

Can I say from the outset that we know that people who've experienced the family law system hold deeply felt beliefs which are often based on a very sensitive personal experience. I have my own lived experience with the content of this bill, but today I'll be speaking based on the wealth of evidence of experts. I acknowledge my committee colleagues who engaged in this inquiry with a compassionate and constructive approach. I acknowledge Senator Scarr and Senator Waters, who are in the chamber today. It is my hope that all senators can follow that lead through this debate on the issues that mean so much to so many. I also want to acknowledge the Attorney-General, who engaged with the inquiry in good faith and was receptive to recommendations, some of which have made their way into the package of legislation, and that is a very good thing. A range of stakeholders from across the family law system engaged constructively in this approach, and I appreciate their time and expertise after what I know has been a very long road to reform.

Overwhelming evidence supports these changes. Lived experience from victims-survivors supports these changes. It's important for me to take a moment here and zoom out to the broader work of the Albanese Labor government on eradicating family and domestic violence. We know that these two things are linked. At the inquiry that we held, two victims-survivors gave evidence during the day, and I want to begin my contribution by reading out what they had to say about this bill. It's really important, I think, that we start this debate acknowledging the words of these two wonderful women. Ms Michelle Baumann said this at the inquiry:

As a mother who has experienced family violence for years and tried to have the Family Court recognise the impacts of this, the biggest part of my journey relates to my ability to protect my children and give them a sense of safety, wherever they are, and agency over their living arrangements, which is a key part of their safety. I am very interested in talking with you about issues of child safety and family violence, and the critical importance of children's agency in these circumstances.

I fully support the removal of the presumption of shared care and responsibility. As a victim-survivor of family violence, I left my abusive partner more than eight years ago and have endured unrelenting, unabated coercive control ever since, largely through the power and control that our Family Court orders have afforded him.

We have equal shared care and responsibility, with our children shifting between our households every week. The children are sent to the abuse that I escaped from. The impacts on them are devastating and lasting.

Ms Charisse Hay also gave evidence at the inquiry. We are going to have a debate today about what the best interests of the child means, and this is what Ms Hay had to say from her experience:

Perhaps the question we need to ask is this: if a parent fails to act in the best interests of their child, is it in a child's best interest to be forced to spend time with them? Through my lived experiences, I learnt that reporting family violence risked negative judgement and criticism at best and counter-allegations of parental alienation at worst. Women and children are silenced and forced to endure ongoing and escalating violence without protection or escape, sometimes for decades post-separation. I left my abuser 13 years ago and I'm still being financially, emotionally and psychologically abused. I am now a registered psychologist treating other families and adult children who have been through the same.

This is what I want every senator who speaks on this bill to go back and read and even watch—that is, when Ms Hay says this:

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.

I wanted to start my contribution with those powerful words from two women who were representative of many people in the family law system who are also facing family violence, because at the inquiry the Women's Legal Service said it best when they said:

We are hopeful that for our clients, who are among the most marginalised and disadvantaged in the community, these changes will mean their experience through the family law system will lead to safer outcomes for children and parents/carers and it will be less confusing and traumatic.

This is what we are talking about today—long overdue reforms to minimise harm and trauma of some of our most vulnerable people.

Our family law system has been subject to more than two dozen inquiries in the past decade, including a comprehensive examination from the Australian Law Reform Commission. Through repeated inquiries and subsequent reports, a clear picture of the challenges has emerged. It is now broadly agreed by experts and advocates in this space that legislation is overly complex and confusing. This confusion results in community misperceptions about the law and in some cases unnecessary protracted litigation.

It is critical that our family law system places the best interests of children at the centre of its operation. These reforms go some way towards that goal. These amendments underscore the government's commitment to making the family law system safer, simpler to engage with and fairer for Australian families. Our amendments are a first step in the government addressing a backlog of recommendations from countless inquiries and reviews never progressed by the previous government. It is not an accident that the first tranche of reforms is one that elevates children's best interests to where they should be—the central concern of this legislation and the central concern of the family law system.

The bill itself, including government amendments to it, will make several changes to the existing family law legislation. These changes will clarify and simplify sections of the act that have consistently led to more protracted, costly and adversarial experiences for families in the court system.

The bill will clarify the needlessly confusing framework currently used for making decisions about parenting arrangements. Our changes will make it clear that the best interests of children are the priority. This amendment simplifies the list of best-interest factors that must be considered by the court when making determinations in family law matters.

During the inquiry into this bill, we heard from advocates who told us that this change will assist them in communicating with their clients on how to determine arrangements that serve the best interests of children. This amendment will ensure that both parents making post-separation arrangements and the court officials making determinations about them will have a straightforward definition of 'best-interest factors'. It will mean all parties can remain focused on the best interests of affected children.

This bill will also ensure the definitions of 'best interests' accommodate the connection to culture and the ways in which family is understood across First Nations communities. We know, because advocates have told us, that connection to community is central to the wellbeing of First Nations kids. The bill makes it clear that the best-interests factors recognise the importance of First Nations children's right to participate in and enjoy their culture. The amendment will also ensure that Aboriginal and Torres Strait Islander kinship groups are appropriately recognised within definitions of 'member of the family' and 'relative' in the Family Law Act.

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

Senator Green, you will be in continuation when the debate is resumed. We will now proceed to two-minute statements.