James McGrath (Queensland, Liberal National Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

The question is that the bills stand as printed.

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

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

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

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

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

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

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

The ALRC supports the idea that a presumption of shared parental responsibility serves as a good starting point for negotiations between parents and recommends that the concept be retained.

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

The ALRC also said:

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

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

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

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

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

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

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

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

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Where it's in the best interests of the child.

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

It would appear that we're going to be on the roundabout again of one particular answer being given all night. As we explore that answer, unfortunately, we do not seem to get any further down the path in terms of an explanation for the poor mums and dads who will be going through this process. Unfortunately, when we hit 8.30 it will all be over for this bill.

The seventh amendment that I've moved on behalf of the coalition, on sheet 2702, adds an overarching objective to the practice and procedure provisions. As drafted, the objectives would allow an approach that is safe, quick and cheap—and entirely destructive of whatever is left of the family relationship. The amendment says that the court should also aim to minimise acrimony. I would have thought that that is exactly what you want to do. If you're in the Family Court system—let's be honest—it is a highly, highly contested situation. I would have thought that the amendment, providing that one of the court's aims should also be to minimise acrimony, is one that the government would be able accept. It also adopts a clear recommendation from the profession.

The eighth amendment, on sheet 2073, opposes the entirety of schedule 8. The only purpose for that schedule—and you've got to love the Attorney-General, seriously—is to provide a trigger for the Attorney to demerge the family courts after the next election. I note that, in an article written a few weeks ago, regarding this part of the act and whether or not this was a path the government was going to go down, a spokesperson for the Attorney-General, or it may have been the Attorney-General himself, basically said that was a matter for the government. If you are not going to do it, (a) why would you put it in this bill and (b) why wouldn't you come out and say, 'No, that is not the intention of this schedule.' And yet what we know, from the limited committee inquiry, is that it is a purely political decision that came out of the Attorney-General's office. I am still unable to find any evidence that it was recommended. As I said, it's a political decision that came out of the Attorney-General's office.

The ninth amendment, on sheet 2706, requires a review of this bill in its entirety. We have shown good faith here and required that the review be independent. Unfortunately, the Attorney was not prepared to match that commitment. Instead of acting in the best interests of families, he has set up an option to find a friendly reviewer that will recommend what he wants to hear so he can further pursue his ideological family law agenda—again to the detriment of those thousands of families who, unfortunately, are going to come into contact with this system.

Without the amendments that we propose, the bill itself can only have a very sad ending for so many. These are sensible amendments. The amendments that we have put forward reflect the considered view of independent bodies and experts—including, as I said, the Australian Law Reform Commission—in particular, in relation to the total removal of the presumption of equal shared responsibility, another frolic of the Attorney-General. There's no evidence that the Attorney-General took into consideration the recommendation of the Australian Law Reform Commission. As I said, they are sensible amendments that take into account the considered views of independent bodies and independent experts. I would ask that, as senators are looking at these amendments, they—even the government—do so in the spirit of bipartisanship. All we want to do is improve the bill. We acknowledge that a deal has been done. Obviously the bill will go through, but I would just ask the government to reflect on our amendments and the fact that they have been put forward, as I said, in a genuine effort of bipartisanship and to actually make the bill better.

Minister, in March, the Attorney-General published a piece in the Herald Sun, the Daily Telegraph, the Advertiser and the Courier Mail in which he said:

For most children, it is overwhelmingly in their best interest to have a meaningful relationship with both parents after separation. The proposed amendments recognise this.

But Professor Patrick Parkinson—and, on any analysis, he is a leading expert in the field and a key architect of the existing legislation—said in his submission that 'the new bill essentially removes from the act almost every single reference to the importance of both parents being involved in children's lives after separation'.

In fact, directly contrary to the Attorney's claims, the government, in the legislation we have before us, has quite deliberately—it is a deliberate act—and expressly removed any requirement to consider a meaningful relationship at all. I go back to the Attorney-General's quote:

For most children, it is overwhelmingly in their best interest to have a meaningful relationship with both parents after separation. The proposed amendments recognise this.

They are actually the Attorney-General's words. You then have the evidence of one of the leading experts in the field who points to the bill itself and says that this is not reflected in the bill. The Attorney-General's claim that interest proposed amendments recognise that it is overwhelmingly in the best interests of children to have a meaningful relationship with both children is misleading, Minister. Can I ask why he made that statement?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thank you, Senator Cash. Unfortunately, I have not seen the article that you are referring to. I do try to follow the actions and media articles of the Attorney-General as best I can, but I have not seen that.

But, in terms of the removal of the term 'meaningful', as I think we touched on briefly yesterday, the ALRC recommended the removal of the term 'meaningful' in the best interests factors. There is ambiguity about the meaning of this word, and the government's proposed drafting emphasises that the sort of relationship that will benefit the child is a question of fact to be determined in each case.

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

Unfortunately, even the answer would appear to indicate that what the Attorney-General said in the published piece is inconsistent with the bill we actually have before us and the amendment moved by the opposition to add back in or to restore the word 'meaningful' was probably more of a reflection of the Attorney-General's quote.

I will now turn to 'any views expressed by the child'. I want to take you to proposed section 60CC(2)(b). This is the provision that says that, in determining what is in the child's best interest, the court must consider 'any views expressed by the child'. If a parent maliciously coaches a child to say something hurtful or untrue, under this drafting, the court would need to consider that, wouldn't it?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It is a fact that some parents will seek to manipulate or pressure their children to express certain views in family law matters. This is a complex problem. However, it is not a reason to deprive children of their human rights. Not allowing children to be heard in matters affecting them so significantly as the creation of orders about who they live with and where and where they get to see each of their parents can have devastating impacts on them. It can disempower and frustrate them, it can exacerbate any trauma they have experienced and it can lead to the creation of orders that are not in their best interests and, in the worst cases, unsafe. It is not anticipated that any of the reforms will lead to a higher degree of parental alienation or pressure from parents on children in the family law system.

Key measures in the bill focus on enhancing the practice of professionals in the family law system. Over time, these are intended to contribute to ensuring that more fulsome evidence about the context of a child's relationship with their parents is provided to decision-makers, including to identify circumstances where a parent may be seeking to pressure or manipulate a child. This would enable decision-makers to consider the implications of such conduct in relation to any views the child has expressed, as well as how the conduct might be weighted in determining a child's best interests. These measures include codifying the requirement for independent children's lawyers to meet with and seek the views of the child and establishing powers to improve the standards of family report writers. The courts will also continue to have discretion around how much weight to place on the child's views in the circumstances of the case.

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

Minister, with all due respect, in response to your answer to my question, let's be very clear: no-one is proposing depriving children of their rights. That was (a) not the question I put and (b) certainly not the proposition I was referring to. So no-one is proposing depriving children of their rights. This is just about bad legislative drafting. It may well be it is unintentional, hence the amendment that the coalition has moved. So I ask you again, specifically in relation to the section and the way it is drafted. The provision says:

… in determining what is in the child's best interests … the court must consider …

…   …   …

(b) any views expressed by the child …

My question is: if a parent maliciously coaches a child to say, for example, something hurtful or untrue, under the current drafting—it is a very simple question, with a yes-or-no answer—the court would need to consider that, wouldn't it?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The ALRC recommended removing the criteria stipulating the weight a court should give to a child's views. The simpler provision makes the importance of considering a child's views clearer on the face of the legislation. The court will still have discretion to consider a child's views in light of the child's particular circumstances and determine how much weight to place on them. It is anticipated the court would need to consider the child's views which are not relevant to the parenting proceedings and determining what is in the child's best interests.

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

Can I just follow that through? You said it is anticipated that the court would need to consider—

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Sorry, Senator Cash. I'll just do that one again. The court will have discretion to consider a child's views in light of the child's particular circumstances and determine how much weight to place on them. It is not anticipated that the court would need to consider a child's views which are not relevant to the parenting proceedings and determining what is in the child's best interests. Apologies.

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

Thank you for that clarification. The issue I have with the way it is drafted—and again this has been raised by way of feedback and certainly in submissions—is that it doesn't accord with the recommendations of professional bodies like the Law Council. What I put to you is that there is nothing in the drafting proposed by the government that requires a court to take into account the child's maturity, level of understanding or any other factors that it considers affect the weight the court should give to the child's views, is there?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The court has the discretion to take into account relevant matters.

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

Can you just take me to that section?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It's 60CC(2)(b):

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

…   …   …

(b) any views expressed by the child;

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

That's even more confusing than when we first started out, and that's the whole point. 'The court must consider any views expressed by the child.' I think we both agree that is exactly the wording of section 60CC(2)(b). The point I'm making—and this is made in good faith, trying to make better what I believe is just bad drafting; that's all it is—is that 'must' means they must consider any views expressed by the child. Unfortunately—and this is where it goes to our amendment—there's nothing in the drafting proposed by the government that requires a court to take into account the child's maturity, level of understanding or any other factors in assessing the weight it should give to the child's view. We've agreed that there's not. The provision you just quoted, section 60CC(2)(b), does not expressly give the court any discretion. As I said, I'm doing this in good faith. If it is bad drafting, this is the reason we've put forward the amendment. In your evidence yesterday, you agreed that there would be unrepresented litigants coming before the court. To an unrepresented litigant reading the law, there's no express indication there, or even on the face of the provision, that there should be some attempt to assess or give weight to the child's views, is there?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The objective of the bill is to simplify the existing complex framework of considerations when a court determines what is in the best interests of the child. As under the existing framework, the courts will still need to consider the views of the child and will continue to have discretion as to the weight they give those views. What is changing is the level of prescription about the considerations judicial officers must undertake and the detail they must provide in the reasoning for their decisions. This will ensure focus remains on what is in the best interests of a particular child and is in accordance with recommendation 5 of the ALRC report.

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

What do you say to organisations such as the Family Law Practitioners Association of Queensland, which called for the inclusion of a provision? Again, they're trying to make this legislation better; they're not disagreeing with the section. I'm saying there's bad drafting. They have called for the inclusion of a provision allowing the court to assess or give weight to a child's views. They said, 'This is significant as parents often take the view that a child's views should be determinative even at a young age.'

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

As I mentioned before and I've said in relation to this issue multiple times, it was a recommendation from the ALRC, and that is why the government adopted it.

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

Again, I accept that answer. The provision in section 60CC(2)(b) says, 'In determining what is in the child's best interests the court must consider any views expressed by the child.' I hope that, in working through it quite genuinely, you may consider an amendment, or even supporting an amendment. To respond to, for example, the Family Law Practitioners Association of Queensland, you might consider putting in the legislation in explicit terms—for parents who are having to flick through this piece of legislation, who just don't know what they're doing and are looking at 'any views expressed by the child'—that the court has a discretion to take into account the child's maturity, level of understanding or any other factors that would affect the weight the court should give to the child's view. That is all I'm seeking the government to consider overnight. It just makes what I believe, and what others who have submitted believe, bad drafting better. And, if the whole point is simplification, this is a positive step in the right direction.

The issue becomes, and we had a lengthy discussion yesterday: do you accept that—regardless of how it is explained, somewhere buried deep in the explanatory memorandum to a bill or, alternatively, online where you can always google it—what will affect most separating couples, and indeed almost anyone who opens a piece of legislation and tries to wade through it and who effectively acts in the shadow of the law, is the set of words on the page.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Sorry, Senator Cash, I might ask you to repeat the question and provide a bit more clarity?

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

The issue that I'm having is this: in good faith, I am putting forward an amendment and I'm asking the government to seriously consider a way to improve this drafting. The clause is there; I understand what the clause means. The issue I have and the issue others have is: it says, 'the court must consider any views expressed by the child'. What it doesn't do in that particular clause, to give clarity to parents who are actually looking at this, is literally then say to the court that 'the court is required to take into account the child's maturity level of understanding or any other factors that it considers affect the weight the court should give to the child's view', and we've established that's not expressly there.

What I'm saying is: an unrepresented litigant opens a piece of legislation and they will only see the words. The words don't contain that additional part which says to them that the court can also take into account these additional factors such as the maturity level of understanding et cetera.

So, what I'm asking is: do you accept that, when someone opens the legislation, all they're going to see is the words. The way it's written creates a problem, because the impression it creates is that the child's views must be given weight no matter how young or immature the child is, and this has a particularly strong impact on people who are acting in the shadow of the law.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Cash, for that clarification. As the explanatory memorandum notes:

As with all of the general considerations in subsection 60CC(2), the court will have discretion to consider those views in light of the child's particular circumstances and determine how much weight to place on them.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Now that we're talking about the children and their views, I'm of the understanding with this legislation that the ICL has the discretion of how often, when, where and if to actually talk to the child and hear what the child has to say. So, is it up to the discretion of the ICL to make this determination?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The ICL would have to meet with the child before the final hearing.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

So there's no follow-up over a period of time? Because family law disputes can go over quite a lengthy period of time. You have the child that is growing over this period of time—their maturity levels and separation from it. Yet, if the courts are going to take into consideration how the child feels about the matter, where they're going to live and with which parent, leaving it up to the ICL when they only need to meet with the child once before the final case—is that what you're telling me? They only need to meet with them once?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The ICL has a discretion as to how regularly they meet with the child.

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

The child can ask for a support person but it will be decided by the ICL if they can get that support person. Is that correct?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I think there's some complexity to that. The ICL can advise the court but it would be up to the judge to make that determination.

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

I'm asking a clarifying question. I have asked Senator Hanson if I could have the call. Senator Hanson put to you that there is a requirement for the ICL to only meet once and you said, 'No, the ICL has the discretion'. In the current legislation, as not amended, can you please take me to the section where there is the discretion.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding is it's not currently legislated; it's in the guidelines.

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

Will you actually review this part of the legislation? It shouldn't be up to the discretion of the ICL. A lot of the complaints we heard in the inquiry from parents were that there was no communication between the ICL and the children they were supposed to be representing. That is a big problem. ICLs were biased towards one client or another, and the children's best interests were not taken into consideration. It should not be up to the discretion of the ICL to determine how often they meet with the child, and once is not good enough.

Also, if they say they want a support person there with them, children have that right to ask for that support person, and it should not be up to the ICL to determine whether or not they allow that support person, because the ICL can turn around say, 'They are a hostile person.' Maybe that's not up to them; it is up to the child to determine if they want a support person. I would like to see this put in the legislation so that we are protecting, as you keep referring back to all the time, the best interests of the child. Therefore, this would be in the best interests of the child if they were allowed to call on the support person that they require. Will you review this in your legislation?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That is why we're putting in the legislation that the ICL must meet with them at least once. We have done that because we do think it is important.

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

Sorry, but a lot of Australians wouldn't agree with you on that. As I said, court cases can go over a lengthy period of time. In the time they are in that courtroom, a child may go through from being seven up to about 10 years of age. Their opinions change. To say once only is a terrible response. That determination in this bill, I think, is poor. It is pathetic when you can't answer anything. My question was about the best interests of the child, and you tell me they only need to meet with the child once? Well, sorry, that's not good enough.

I also want to go to my amendment while we are talking about the ICLs. My amendment on sheet 2131 is about ICLs needing to have better training. It says:

(2A) If a lawyer has not previously been appointed as an independent children's lawyer, the court must not appoint that lawyer under subsection (2) unless the lawyer has undertaken training under an approved program.

(2B) If a lawyer has previously been appointed as an independent children's lawyer and has regularly performed the functions of an independent children's lawyer for a period of 2 years or more, the court must not appoint that lawyer under subsection (2), unless:

(a) a period of at least one year (the interim period ) has passed since the lawyer's last appointment as an independent children's lawyer ended; and

(b) during the interim period the lawyer has undertaken further training under an approved program.

I state this because a lot of these children's lawyers are just caught up in the system, and it's a revolving door. They just keep going with the same views. I believe that they should need updated training. Get them out of the system to do more training and then come back, so they are aware of the children's needs. A lot of these children's lawyers have not been required to even meet with the children. They've never met with the children. A lot of them wouldn't even have had the psychological training to understand a child or to interview a child to see how they feel about it. That's another thing that I need to ask you, Minister. What training do these ICLs have to have when they're dealing with children, and the psychological impacts on children, to make the best decisions to advise the courts on what's in the best interest of the child?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

To be appointed as an ICL, it is mandatory to have a minimum of five years experience in family law and to have successfully completed National Legal Aid's ICL training program. The training program covers topics on child development, child trauma and other matters that are essential to ICL work. ICLs also undertake additional training as part of ongoing professional development and may access guidance materials and professional support in the court of their work. The Guidelines for Independent Children's Lawyers and the Independent Children's Lawyer Practice Standards and Guidelines also provide guidance to ICLs on how to undertake their duties and safely and appropriately engage with children. ICLs may work with support from social scientists, such as psychologists employed by the legal aid commissions, or may use other sources, such as a school counsellor or a psychologist, when meeting with children. This will depend on the child's needs.

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

Minister, can I go to the point now about recordings. If a children's lawyer is going to have an interview, and if it's up to their discretion as to whether they'll allow the child to have a support person in that meeting, should that meeting with the child be recorded? All you're relying on is that children's lawyer, who is going to put in a report to the judge, which the judge really takes into strong consideration in making their determination. Wouldn't it be in the best interests for that recording to be made available to the parents so that they know what's been put before the judge? None of this is being recorded and reported back to the parents, and I think they should have the right to have a recording.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

No, we don't believe so. We think that the ICL is there to represent the child, and recordings could be misused by the parties involved.

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

It's for the protection of the child, right? Also, why aren't interviews between parents and court reporters recorded for quality assurance? Parents should have a chance to rebut their reports. They can't do it if they can't see the reports. You have court reporters that are putting in their reports to the courts as well. Parents have no idea what is being put before the courts. Why shouldn't they have a right to have that recorded in these court reports? It's been known that some of these court reporters are not doing their jobs properly. They're putting their biased opinions to the court system, and the courts are ruling on things that are not true. It's been brought to my attention that a court reporter was putting in the same reports for different cases. They weren't even doing their jobs properly. They were just using information from a previous case. Shouldn't the parents have a right to be able to record the meetings that they have with the court reporters and have a copy of it to know what is being presented to the judge?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The bill introduces a power for the government to regulate family report writers.

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

To regulate them? You didn't answer my question. Are you going to look at giving parents the right to record the interview with the court reporters so they know what is going to be said to the judge? They have every right to know what's being put across.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That's not something we're considering.

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

The Australian people will get a view of what you think about the family law system and their rights. I'm going to go to part 1 of schedule 2 of the bill. It's about line 9, where—correct me if I'm wrong—you're omitting (d), the costs order. Is that correct?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding is that that was something that had been duplicated. In order to simplify the bill, it's been removed there, but it is still evident elsewhere in the Family Law Act.

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

Where in the Family Law Act? My understanding is that you have deleted cost orders for the contravention of court orders. I understand you've deleted cost orders. If that's not the case, then tell me.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It's captured in section 117.

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

Have you also deleted costs for false domestic violence allegations?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I don't know if you're able to provide more clarity on that, Senator Hanson. There's one section in the new bill that deals with cost orders, which is section 117.

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

I'll have a look at that. I want to go to back to this one, about the cost order in part 1 of schedule 2. It says:

If the court finds that the respondent contravened the child-related order without having a reasonable excuse, the court may make any of the following orders (having regard to the seriousness of the contravention) …

Part (c) of that says:

an order requiring the respondent to compensate another person for certain costs incurred as a result of the contravention.

You've taken that out. You've admitted it in your amendments. Basically, you're taking that out of the act; therefore, you've taken out cost orders for the contravention of the court. You took it out of that section. Isn't that correct?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

As far as we're concerned, it's in section 117 of the act. It was a duplication. That's why it was removed.

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

Could I get a clarification on the point that Senator Hanson's making? There's currently also a section 70NBE. That's in the act. I also want to explore some issues that Senator Hanson raised in relation to the ICL. There are certain things in the legislation we have before us. Senator Hanson raised some issues in relation to the ICL, particularly in relation to discretion. That's actually not in the legislation we currently have before us. That was the point Senator Hanson was actually making. You have then said it is in the guidelines. Senator Hanson might want to explore further what those guidelines are, where those guidelines are and when those guidelines are going to be printed. Is there an amendment being moved by the government to address this, because it actually was bad drafting and there was an issue with that particular section?

You have circulated a government amendment that also deals with costs in relation to the enforcement of child related orders. I want to confirm something in relation to the answer Senator Chisholm gave. I understand it was incorrect and you've circulated a provision that removes proposed section 70NBE.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Cash. The removal of proposed section 70NBE was a recommendation of the Senate committee. It said:

The committee recommends that the Australian government removes proposed section 70NBE from the Bill to avoid duplication of the court's discretionary power to award costs in family law matters.

That recommendation is addressed through government amendments to remove proposed section 70NBE, amendment (23); adding a note referring to section 117 costs, amendment (16); and making the necessary consequential amendments as a result.

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

In terms of the questions Senator Hanson was pursuing on the independent children's lawyer, at this point in time as the legislation stands there is only a requirement to meet once. If I understand the evidence given by the minister, he said, no, there is actually a discretion. I sought clarification as to in which section of the act there currently is the discretion. The answer the minister gave was that it is in the guidelines. Can you take me through what those guidelines are please and can we have a copy of them to look at?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Cash. I'll, hopefully, provide some clarity. I attempted to say that it is currently in the guidelines but we're putting in the act for the ICL to meet with a child at least once. I thought I was clear on that, but I apologise if it wasn't as clear as it could be. The requirement for the ICL to engage with children codifies in legislation the existing expectations of practice that are expressed in the guidelines for independent children's lawyers that were developed by National Legal Aid and endorsed by the Federal Circuit and Family Court of Australia and the Family Court of Western Australia. The legislative requirement will ensure that this engagement with a child occurs in every appropriate case and will facilitate national consistency in ICL practice. This will also ensure that the views of the child can be heard and considered when decisions are being made that impact them, consistent with article 12 of the Convention on the Rights of the Child.

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

There seems to be a misunderstanding. Senator Hanson was asking about requiring ICLs to meet more than once. Based on the current drafting of the legislation they are only required to meet once. The point Senator Hanson was making was that there may be a requirement to meet more than one time. Just so we're all on the same page here, can you take us to the wording that actually shows it's not a requirement to meet once but that you could meet—

That's what I'm trying to now find out because it has got very confusing very quickly. Can you find the section that's going to be put in and read it out just so that Senator Hanson and I are both confident that the question that she asked has been addressed correctly? If not then we can pursue it some more. Where in the legislation does it say that the ICL has discretion to meet more than once?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The government has tabled amendment 33 to specify that the ICL retains the discretion to determine the timing, frequency and method of engagement with the children's best interests they are appointed to represent. So:

(32) Schedule 4, heading, page 38 (line 1), at the end of the heading, add "and Hague Convention proceedings".

(33) Schedule 4, item 2, page 38 (after line 16), after subsection 68LA(5A), insert:

(5AA) The independent children's lawyer has discretion in relation to the following matters (subject to any order or direction of the court with respect to the matter, for example under paragraph 68L(2)(b) or paragraph (5D)(b) of this section):

(a) when, how often and how meetings with the child take place;

(b) when, how often and how the child is provided with an opportunity to express views.

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

I've got that section here which you just mentioned. You've got a note on that which says: 'The independent children's lawyer must perform the following duties, not necessarily at the same time: meet with the child, provide the child with an opportunity to express any views in relation to the matters to which the proceedings relate. Note: a person cannot require a child to express the child's views in relation to any matter under section 60CE.' What do you mean by that—'You cannot require a child to express the child's views in relation to any matter'?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding is that it basically means that you can't force a child to talk.

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

I've got a lot of documents here. I'm just a layperson. I'm not a lawyer. But can you actually just tell me what 60CE is? Can you give me some guidance and read it out to me—and not only to me; the public need to know that as well.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding is: that's in the existing act, and we're not amending it. We'll try and come back to you before the end of tonight, Senator Hanson.

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

I want to go to another one of the amendments I want to put up, which we touched on yesterday, about fifty-fifty shared parental responsibility. Under that, I've made reference to the United Nations as well, if you have a look at that. We touched on that yesterday. It's on sheet 2135. It states:

Presumption of equal shared parental responsibility

(3A) For the purposes of paragraph (1)(c), the court must apply a presumption that it is in the child's best interests for the child's parents to have equal shared parental responsibility for the child.

…   …   …

(3B) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b) family violence.

(3C) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

That is actually in my amendment. But I also have this note:

Paragraph 60B(b) provides that it is an object of this Part to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989. This includes articles 7, 9 and 18 of the Convention which relate to:

(a) a child's right to know and be cared for by both parents; and

(b) a child's right to maintain personal relations and direct contact with both parents on a regular basis; and

(c) the principle that both parents have common responsibilities for the upbringing and development of the child.

There was a survey done on a father's impact on child development. We all know who are the main people who really are upset about this. I'm not disregarding mothers, because they've been denied the right to see their children too, but a lot of my grievances are coming from fathers who, for what they feel is no apparent reason, are denied the right to have contact with their children or see their children at all. They've actually been broken by this. These are loving families. There's no violence—or there may be false accusations brought against them which haven't been proven—but they are denied the right to see their children. A blog article entitled 'A father's impact on child development', which is on the website all4kids.org, has the subheading '10 facts about father engagement'. I'll just read out a couple:

Children who feel a closeness to their father are: twice as likely as those who do not to enter college or find stable employment after high school, 75% less likely to have a teen birth, 80% less likely to spend time in jail, and half as likely to experience multiple depression symptoms.

The other point is:

The quality of the father-child relationship matters more than the specific amount of hours spent together. Non-resident fathers can have positive effects on children's social and emotional well-being, as well as academic achievement and behavioral adjustment.

Elsewhere, the article says:

According to the 2007 UNICEF report on the well-being of children in economically advanced nations, children in the U.S., Canada and the U.K. rank extremely low in regard to social and emotional well-being in particular. Many theories have been explored to explain the poor state of our nation's children. However, a factor that has been largely ignored, particularly among child and family policymakers, is the prevalence and devastating effects of father absence in children's lives.

For starters, studies repeatedly show that children without fathers positively present in the home suffer greatly.

Another report says:

"It is important for the majority of children to continue the involvement of both parents after family separation," Professor Chisholm wrote. "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.

"It is important that the legislation should not be seen to support that assumption."

Professor Chisholm argued that the clause should not be repealed but rather reworded to direct a court to "presume that it is in the child's best interests that both parents continue to have parental responsibility, unless it considers that this would not be in the child's best interests in the circumstances of the case".

The suggestion comes after a 2019 Australian Law Reform Commission—

the people you refer to as those from whom your legislation came—

recommended the provision not be abolished but rather reworded to allow "joint decision making about long-term issues".

Professor Parkinson, who was a key adviser to the Howard government … warned the government's proposed changes would have damaging consequences for parents, children, courts and social cohesion.

You're proposing to take out fifty-fifty shared parental responsibility, so you're going to allow the courts to say that whoever gets the child most of the time is going to have complete say over this. It goes far beyond this. Parents should have an involvement in their children's lives. It goes beyond even what school they go to and their education. It also goes to our nation's problem with gender dysphoria. Are you going to allow one parent to have complete control over the child and say whether they can go and have puberty blockers or mutilation or whatever, while the other parent has no say in it whatsoever? That's virtually what you are doing here. You are taking away a parent's right to have a say over their child's future and their wellbeing, and you are going to let the courts decide this.

Children are brought into this world by two parents. They only have one mum and they only have one dad. They can have step-parents, by all means, but they only have one mum and one dad. You are denying these parents their rights, by taking this out of the legislation. You are going against the United Nations Convention on the Rights of the Child. You are denying parents their constitutional right under section 51(xxii) of our Constitution. This legislation, as far as I'm concerned, is unconstitutional and, based on section 51(xxii) of the Constitution, it could be challenged in the High Court by parents out there who are denied the right to see their children for no real reason. Minister, will you look at my amendment that I've put forward to again include in the legislation the fifty-fifty shared parental responsibilities of the parents?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Hanson. We will be opposing your amendment. The proposed amendment does not address the misunderstanding associated with the terminology, that equal shared parental responsibility means equal time rather than relating to joint decision-making on major long-term issues. Further, this amendment does not address the fact that the evidence shows that the presumption is currently regularly applied in the presence of safety concerns, despite the legislation specifying it should not apply in cases of abuse of a child or family violence. The retention of any presumption detracts from the focus of the best interests of the child.

In terms of some of the other broader points you made, Senator Hanson, I disagree with a lot of it and I don't think it did your arguments any favours to go to some of the culture wars, as you did. The intention of these amendments is not to see less custody for fathers. What is changing is a formulaic reasoning process which has contributed to a misconception that parents are entitled to equal time with a child rather than focusing on what is in the child's best interest. Where it is in the child's best interest, the outcome will be that both parents will be making decisions jointly and in equal time or a substantial and significant time arrangement. For a small number of children, it will be in their best interests that one parent will be making decisions and that there is with the other parent. These reforms will ensure that the best interests of the individual child are considered.

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

Minister, what do you say to Professor Chisholm and Professor Parkinson and their comments and, of course, the comments from the ALRC, who reckoned that it shouldn't be taken out of the legislation and that they believe it just needs rewording. As I've said to you, it needs rewording; not to be taken out.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Hanson. The government's approach is that the full repeal is the most direct approach to addressing misunderstanding about this issue amongst the general public. Any presumptions about parental responsibility can take the focus away from the child's needs. They can encourage parents to negotiate in their own interest or to agree arrangements despite their safety concerns because they think this is required by law. They are also an additional step in the court's decision-making process, adding time and cost to proceedings.

None of the major inquiries into the family law reform have supported the presumption in its current form. It is widely misunderstood as creating an entitlement for parents to have equal fifty-fifty time with their children. The joint select committee recommended the government urgently release exposure draft legislation to amend section 61DA to address the current misunderstanding that equal shared parental responsibility equates to equal time with children.

The 2017 House Standing Committee on Social Policy and Legal Affairs inquiry into a better family law system to support and protect those affected by family violence heard substantial evidence that the distinction between responsibility and time is not well understood, influencing both the culture within the judiciary and the assumptions of separating parents when agreeing to consent orders. The committee recommended that the Australian Law Reform Commission consider developing substantial amendments to part 7 of the Family Law Act, including removing the presumption of equal shared parental responsibility. The ALRC suggested rewording it to be 'a presumption of joint decision-making about major long-term issues'; however, the government considers that renaming the presumption would not sufficiently address the safety concerns associated with this application. For example, the Australian Institute of Family Studies reports from 2015 and 2022 show that orders for shared parental responsibility are made in the majority of litigated matters and in the presence of safety concerns. This is a strong indicator that the presumption is not working as intended even when matters are determined by a court.

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

Minister, I don't agree with what you've just said. The fact is that the presumption of parents is that they have a fifty-fifty right. Isn't it funny that one day both parents can be in a house looking after their child and the child's best interests, and then, just because there's been a separation and they're not living under the one roof anymore, you want to deny the other parent the presumption that they can have that as a starting point. If it was a starting point, at least they'd get fifty-fifty shared responsibility in parenting rights with their children. But all of a sudden that's out the door. It's: 'Sorry. You moved out of the house. You've lost your rights to be a parent to that child anymore.' Things were alright the day before, but within a matter of hours you want to take that full responsibility away from them. How are these parents supposed to feel? Shouldn't you give them some hope that they are going to at least be listened to? Your bill is taking that right away from them.

You talk about the safety of the child. All of this is presented in the courts. This is going to be presented by the lawyers. If there are real concerns for the wellbeing of the child, they will be taken into consideration by the courts. These parents should at least go into the courtroom thinking that they're going to have a fair hearing, that they will have some time with their children. I don't know if you have many people contact you about the problems they've had with the family law courts and being denied the right to see their children. I've got fathers who haven't seen their kids for years. I've even had some mothers contact me to say they can't see their children. I can tell you about one case. A woman contacted my office and said, 'The ICL'—this is an ICL, mind you; they can be biased—'declared a mother to be negligent because she hadn't had a COVID vaccination and neither had her two teenage children.' Do you know what the ICL's recommendation was? The ICL reported to the court that she was a negligent mother, and, hence, the court ordered that she couldn't see the children. Even to this day she can't see the children. It was the ICL's decision, just because she hadn't had a vax and the teenagers didn't want to have the vaccination, and she was denied the right to see her children.

That's why I'm saying that the ICLs should be recorded. The parents should know what's being said. They have a right then to defend their case before the courts. They don't know the reports that are being put up before the judge. They don't know what they should be answering to the judge in some sort of defence. This woman has been denied the right to see her children based on an ICL's biased opinion as to whether or not someone should have a vaccine. I think that's absolutely disgraceful.

That's why I said to you that it should not be at the discretion of anyone. It should be in this legislation. People have a right to have a recording of the court reporters and of the ICLs with the children. They have a right to know what's being said behind closed doors. Some of these biased people with their own views are not giving parents a fair go in the family law court system. That's why we have more problems going on now, because people are distraught. Suicides are happening. This is why we have the harm that is happening among males and females who are fed up with the family law court system. They're finding no justice there. That's why we have the problems that are happening, the murders that are happening. It is all because of the family law courts. It is because of sheer frustration. They've had a gutful of it and they can't take it anymore. Until you get this right and give people a fair go, you're not going to change anything. You're making it worse.

Minister, I don't think I'm going to get a different answer out of you, so I'm going to go to another section.

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Senator Hanson, please remember to direct your questions through the chair and not refer to members in this chamber as 'you'.

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

Oh dear! I want to go to section 65DAAA, the reconsideration of final parenting orders. It says at (2):

(b) whether there is any new material available that was not available to the court that made the final parenting order.

You took out the word 'new'. Can I ask why?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Hanson. Paragraph 65DAAA(2)(b) of the bill stipulates that, when deciding whether it will be the best interests of the child to consider a final parenting order, the court may take into account whether there is any new material available that was not available to the court that made the final decision. The proposed amendment removes the word 'new' from this subparagraph in response to stakeholder feedback that the inclusion of 'new' could lead to legal arguments about what 'new' means. This amendment makes it clear the court may have regard to material that was in existence at the time of the court proceedings but was not considered by the court at the time.

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

I have a line of questioning, if Senator Hanson doesn't mind, in relation to the presumption of equal shared parental responsibility. I just want to clarify some of the responses given to Senator Hanson. The evidence the minister gave was that none of the major inquiries recommended the full repeal of the presumption. Can I please confirm that.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The Henderson inquiry recommended the ALRC consider repealing.

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

Can I just confirm that the ALRC recommendation was that it should be rewritten or redrafted.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Sorry, Senator Cash, for the time taken there. The government's approach on full repeal is that is the most direct approach to addressing misunderstandings about the issue amongst the general public. Any presumptions about parental responsibility can take the focus away from the child's needs and can encourage parents to negotiate in their own interests or to agree to agreements despite their safety concerns because they think this is required by law. There is also an additional step in the court's decision-making process adding time and cost to proceedings. None of the major inquiries into the family law system have supported the presumption in its current form. It is widely misunderstood as creating an entitlement for parents to have equal, fifty-fifty time. I mentioned that the joint select committee recommended the government urgently release the exposure draft. I mentioned the 2017 House Standing Committee on Social Policy and Legal Affairs inquiry, which recommended that the Australian Law Reform Commission consider developing substantial amendments to part 7 of the Family Law Act, including removing the presumption of equal shared parental responsibility. The ALRC suggested rewording it to a presumption of joint decision-making about major long-term issues; however, the government considers that the renaming of the presumption would not sufficiently address the safety concerns associated with its application. I then mentioned the Australian Institute of Family Studies reports from 2015 and 2022, which show that orders for shared parental responsibilities are made in the majority of litigated matters, and in the presence of safety concerns. This is a strong indicator that the presumption is not working as intended, even where matters are determined by a court.

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

To summarise the point, none of the major inquiries have supported the presumption in its current form. The point is equally made that none of those inquiries recommended repealing it either. That is the point that both Senator Hanson and the opposition will continue to make. It is also why we have moved an amendment in that regard.

In terms of the presumption, and exploring further Senator Hanson's line of questioning, the presumption of equal shared parental responsibility was one of the key recommendations of what was a bipartisan and unanimous report, titled Every picture tells a story, handed down in 2003 by the committee chaired by Kay Hull AO. I want to read an extract from the committee report. At 2.56, it said:

… the disappointment with the implementation of the 1995 reforms to the FLA has been a failure in practice, particularly in court outcomes, to match the expectations of Parliament for shared parenting. The committee believes that the Parliamentary intention could be significantly reinforced if courts were required to consider the presumption of shared responsibility in each case that they consider.

Noting that it was, as I stated and as was recognised widely at the time, a bipartisan and unanimous report, does the government accept that in making those recommendations the committee did so after careful analysis of many years of evidence?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I want to get clarity about which government decisions you're talking about. Are you talking about the decisions that were made in 1997?

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

In 2003, in a landmark report that was heralded as such, the bipartisan and unanimous Every picture tells a story report was released by a committee chaired by Kay Hull AO. As I said, it was bipartisan and unanimous. I quoted an extract from the committee's report. The reforms themselves were implemented in 2006. The point in relation to that report was: does the government accept that in making the recommendations in the bipartisan, unanimous Every picture tells a story report in 2003, which were ultimately implemented in 2006, the committee did so after careful analysis of many years of evidence?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I think it would be a fair conclusion that was made at the time, but since that has come in—given that was now over 20 years ago—stakeholders have suggested that it's not adequate in modern times.

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

Again, I don't think there's any dispute that the presumption itself needed to be rewritten, clarified and simplified. The point that Senator Hanson and I are exploring is the fact that, in this legislation, the government repeals it in its entirety. Do you now accept, as the Labor Party did in 2003, that the presumption was a response to the outcomes of many, many years of Family Court cases that were decided without any kind of legislative guidance on the value of shared parenting?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I'm not trying to be difficult, Senator Cash. Obviously, I was not in parliament at the time and was not aware of the debate that was happening around that legislation.

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

For the record, I would have thought that there were advisers here from the Attorney-General's Department who could assist you in answering that question. Actually, it was a landmark report. It was landmark because it was unanimous and bipartisan and both parties of government came together to produce fundamental changes to the family law system. Those particular recommendations were the result of the outcomes of many, many years of Family Court cases decided without any kind of legislative guidance on the value of shared parenting.

In March of this year, the Attorney-General published a piece in the Herald Sun, the Daily Telegraph, the Advertiser and the Courier Mail, in which he said:

… the Howard government inserted the presumption of equal shared parental responsibility in the Family Law Act. This ill-advised step has created ongoing confusion and delivered prolonged litigation and conflict.

It is time to repair the damage.

I want to compare Mr Dreyfus's comments with the research published in 2014 by Professor Patrick Parkinson on the impact of the reforms made by the Howard government in 2006, which, as I said, inserted a presumption of equal shared parental responsibility based on a landmark report that was both unanimous and bipartisan.

At the time, Professor Parkinson was a Professor of Law at the University of Sydney. He'd been president of the International Society of Family Law, the chair of the Family Law Council and the chair of the Ministerial Taskforce on Child Support. His detailed analysis of the impacts of the reforms, published in the Dalhousie Law Journal in 2014, looked at the careful balance to those reforms, including the protections against violence and the increased use of mediation. This was one of the analyses:

The total number of applications for final orders in children's matters (including cases where there were also property issues) fell from 18,752 in 2005-2006 to about 12,815 in 2010-2011, a fall of thirty-two per cent over the five years following 2006—

When the landmark reforms and the landmark amendments were made to the Family Law Act. So, the Attorney-General's claim, which he uses to justify the changes, don't accord with the evidence. Do they?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I disagree with your assessment there. I think your view of the Attorney-General is colouring your analysis there, Senator Cash. The removal of the presumption is supported by evidence that shows that orders for shared parental responsibility are made in the majority of litigated matters and in the presence of these family violence and safety concerns. The Institute of Family Studies' research findings supported the removal of the presumption. As the Australian Institute of Family Studies states in their Senate submission:

The AIFS Evaluation research, together with the AIFS Compliance and Enforcement Project, indicates how shared parental responsibility is unworkable and, in many cases, unsafe, with the application of a presumption in favour of joint parental responsibility compounding the existing risks for families accessing the court and other formal resolution pathways.

Stakeholder feedback on the exposure draft also reaffirmed that this misconception can lead to vulnerable parties agreeing to unsafe and unfair parenting arrangements and can provide ongoing avenues for continued coercive and controlling behaviour between partners where family violence is an issue.

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

With all due respect, the point here is that the Attorney-General has misled the public about the impact of the Howard government's reforms. They are not my assessments; they are the assessments of Professor Parkinson, based on the available data. The Attorney-General clearly stated, in his articles in the newspapers that I referred to:

… the Howard government inserted the presumption of equal shared parental responsibility in the Family Law Act. This ill-advised step has created ongoing confusion and delivered prolonged litigation and conflict.

It is time to repair the damage.

But when you actually look at the evidence in relation to what occurred after the changes were made, as I said, you see that there was actually a fall of 32 per cent over the five years following 2006. So I would ask anyone reading the Hansard to make up their mind, purely by looking at the evidence that is available, as to whether or not the Attorney-General has misled the Australian public in his pieces.

I will continue with the Attorney-General's rationale for removing the presumption against equal shared parental responsibility as he explained it. Although he was critical of the 2006 reforms for delivering, in his words, 'prolonged litigation and conflict', that, in fact, was not borne out by the evaluation of the reforms conducted by the Australian Institute of Family Studies in 2009. That research, prepared by Kaspiew and others and published in December 2009, concluded, among other things, that, while safety concerns were present for some, the Howard-era care reforms resulted in, 'better quality inter-parental relationships'. It also found:

…   …   …

So, again, you have a quote from the Attorney-General but then you have evidence. I put it to you, again, that the Attorney-General's explanation of the need for these reforms does not reflect that evidence, does it?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I disagree with that, Senator Cash. As I talked through before, the removal of the presumption is supported by evidence that shows that the orders for shared parental responsibility are made in the majority of litigated matters and in the presence of these family violence and safety concerns. As I mentioned, I think the Australian Institute of Family Studies research finding and their Senate submission go to that. Stakeholder feedback on the exposure draft also reaffirmed this misconception can lead to vulnerable parties agreeing to unsafe and unfair parenting arrangements.

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

Can I just confirm something? We have evidence here. We have what the Attorney-General and we have the evidence which, in my humble submission, does not support the position of the Attorney-General. Just to be clear, though, I don't think anyone is disputing that the drafting at present leads to confusion. I don't think that is in any way disputed, and that reform to equal shared parental responsibility is warranted. Again, I do not think that is disputed. What we're putting on the record here is that the justification that the Attorney-General put to the Australian people does not accord with the data that I have read into the Hansard.

I just want to turn to something else that the Attorney-General told the Australian public, again when explaining the need for the reforms. He said:

The new laws are informed by the more than two dozen inquiries into the family law system over the past nine years, including the 2019 Australian Law Reform Commission inquiry and the 2021 Joint Select Committee inquiry.

If we could now go through and look at some of the reports over past years that deal with the presumption, seeing that the Attorney likes to rely on reports, the first thing to note is that, when considering equal shared parental responsibility, the Attorney conveniently excluded the reports handed down when Labor was last in power. In 2009, the Hon. Justice Richard Chisholm released the Family courts violence review. Did the Attorney take that report into account?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The joint select committee considered all previous reports, listed in the back of their report, and then their ultimate recommendation was that the government urgently release the exposure draft relating to advocating the removal of this to change the provision.

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

I also want to go to this 50/50 shared parental responsibility. I'm getting mixed reactions from you about some of the things you've said about getting recommendations from the Australian Law Reform Commission. Correct me if I'm wrong: you repeated what I said there—that they believe that it should not be abolished but, rather, be reworded to allow joint decision-making about long-term issues. Is that correct, Minister?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

In terms of what the ALRC put forward, my understanding is that that is correct.

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

If you've actually taken a lot of the ALRC's recommendations and put it into this bill and they've said don't take it out but just reword it, where did you get the advice to actually take it out and, really, for what reasons?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

As I mentioned, it was from some of the evidence that was given to the joint select committee that they made a recommendation on. The government's decision was that a full repeal has the advantages of being simpler and more child focused. It means that there will be no presumption of a particular outcome and that the court can focus on assessing the particular best interests of the child in making their decision.

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

Evidence was given to you by Professors Parkinson and Chisholm, other people and the ALRC, and these are professionals in this field. You've taken it from a joint House inquiry into this. I can tell you, Minister, that I was deputy chair of a Senate inquiry. We did haven't the expertise. We didn't understand. We were just guided by the evidence that was given to us to try and understand it. Here you have professional people that have advised you that it should not have been taken out completely but possibly reworded. With regard to this, at what point did you have discussions with the chief justice or the deputy chief justice of the family law courts to get their opinions?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The government acknowledges that rewording the presumption was suggested by the ALRC in light of the significant community misunderstandings of the provisions as equating in equal time. However, the proposed amendments do not address other fundamental concerns that have been raised by stakeholders such as the Law Council of Australia, the Family Law Council, National Legal Aid and Women's Legal Services. Any presumption of this nature would detract from a clear focus on the best interests of the child. As the president of the Law Council of Australia, Mr Murphy, stated:

Presumptions unreasonably fetter the discretion of the court, and provisions around parenting should not prioritise or favour any particular parenting arrangement, as is currently the case.

He said that 'parental responsibility should be a matter for the court to determine' in each most commonly raised and relevant decision-making matter in family law.

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

My question was: what discussions did you have with the Chief Justice of the Federal Circuit and Family Court or the deputy chief justice—or with any justice of the family law courts, for that matter? What discussions, communications or advice did you receive from them with regard to this? We're talking about people who deal in this issue. That's their livelihoods. That's what they deal with constantly all the time. I want to hear what discussions you've had with them to come to this conclusion.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Hanson. The courts were consulted as part of the discussions that go on between them and the department in drafting the legislation.

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

My direct question was about fifty-fifty shared parental responsibilities. What discussions did you, the minister or the department have with the Chief Justice with regard to fifty-fifty parental responsibility being taken out of this legislation in full?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I answered that question, Senator Hanson.

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

Minister, you didn't answer that question at all. It was a specific question. You haven't told me. I asked you: have you had specific discussions? In this matter here, your Prime Minister has said: 'We are going to be open and honest. We are going to have communication. We are going to be out there and let you know.' You've taken out one of the most important pieces of this legislation—giving people fifty-fifty parental responsibility. The people that I believe I probably listen to more than the Law Council of Australia. Groups for women's rights and all the rest of it, like domestic violence organisations, also have self-interest. I want to hear from the judges themselves. They're dealing with this in the courts day in, day out. They are the ones I would take advice from and listen to. But you clearly haven't asked them the question or had consultation with them to hear their advice. Minister, again I'll ask you the same question. What discussions have you had with the Chief Justice of the family law court with regard to taking this fifty-fifty shared parental responsibility out of the legislation?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The department consulted with a wide range of stakeholders in person, such as the Federal Circuit and Family Court of Australia, the Family Court of Western Australia, the Family Law Council and former judges, as well as practitioners, academics, peak legal representative bodies, legal and family relationship service providers, women's and children's safety advocates and First Nations organisations.

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

Minister, can you actually give this chamber a copy of their recommendations on this legislation, please?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

There are avenues for you to pursue that through the Senate, Senator Hanson.

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

There are not avenues for me to pursue it. This bill is going to be passed tomorrow. It needs to be answered now. You said there that they were consulted. I'm asking you for evidence of this. I want to see what they've advised with regard to this certain piece of legislation here and fifty-fifty shared parental responsibility. I want to see the recommendations they gave to the government. I'm asking you to present that to this chamber before this bill is passed.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

As is usual with discussions between the department and the courts, they are confidential.

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

I'm gobsmacked by that answer. I cannot believe it. We're talking about the most important part of this legislation, which my phones have been ringing hot about, and you're telling me it's confidential. We're not going to hear what they have to say about it? I think that is a poor answer on your behalf to the people of Australia. You won the election—well, you didn't win it, on 32 per cent, but you run the government—and the whole fact is that you're telling me that you're open and honest with the people of Australia? You were going to lead a government that would be there for the people—that would be accountable to the people. I'm asking you for something that's important to the people of Australia, and you can't give it. Do you know why? I believe it's because it's not there. I think you have misled this chamber. I don't think you're being up-front about it and I don't think the chief justice was actually consulted. I tell you what, if they had consulted the minister, if they made this comment about consultation and advice then that would have been on the record because it would be very important. If they had stated that it should be taken out then you would be forthcoming with it, but you are not, so I don't believe that you're being up-front about this. You can reflect on that unless you want to answer me. I'd be quite happy to hear your answer to that one. Have you got anything to say, Minister?

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Senator Hanson, if you have a question, you sit down, then I call the minister. Please don't make personal comments directed to the people in the chamber.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I answered the question.

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

Just pursuing the line of questioning that Senator Hanson is going down in terms of the evidence that's actually been taken into account by the government in coming to its determination that, instead of accepting the recommendation from the Australian Law Reform Commission, it would repeal, in total, the presumption of equal shared parental responsibility.

I have referred to the 2009 report, the Family Courts Violence Review, released by the Honourable Justice Richard Chisholm. Your answer to my question, 'Did the Attorney take the report into account?' was that the joint select committee had taken into consideration reports as listed. The issue I have is the Attorney-General can't have taken that report into account because the way Justice Chisholm described his recommendations was as follows:

These recommendations are intended to retain the essential ideas of the Hull Committee in 2003, while removing difficulties and unintended consequences that appear to have occurred as a result of the way the original idea has been translated into legislation.

In fact, recommendation 3.3 of Justice Chisholm's report said that the provision that sets out the presumption'—Senator Hanson will like this—'should be retained and amended.' But the Attorney expressly decided to ignore advice given to his government when it was last in power. Isn't that correct?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

What I would say is a lot has changed since 2009. I should declare that, to my knowledge, I'm no relation to Professor Chisholm. Professor Chisholm, as you've referred to, has expressed support for the approach of the repeal through evidence to the Senate inquiry.

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

Can we look then at some of the other reports that the Attorney may have considered before implying to the Australian people that his decision to remove the presumption was informed by inquiries into the family law system. In 2014, the Productivity Commission released the Access to Justice Arrangements report. Was the decision to remove the presumption a decision the Attorney made because of a recommendation in that report?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I don't have that report in front of me. I'm sure you'd understand that. I'll try to get a copy of that and try to come back to you.

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

I'll save you the trouble. It wasn't. The report didn't make a recommendation to repeal the presumption. I now go to the 2015 report by the Special Taskforce on Domestic and Family Violence in Queensland, led by former Governor-General Dame Quentin Bryce. That report was called Not Now, Not EverPutting an End to Domestic Violence and Family Violence in Queensland. Was the decision to remove the presumption a decision the Attorney made because of a recommendation in that report?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I can recall that report coming down as a Queensland senator. What I do know, and as I've said when talking about this issue with you and Senator Hanson, is a full repeal has the advantages of being simpler and more child-focused. It means that there will be no presumption of a particular outcome, and the court can focus on assessing what is in the child's best interests.

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

The point of the line of questioning that both Senator Hanson and I are pursuing is in relation to the body of evidence that was taken into consideration by the Attorney-General in making his decision—because it would appear that it was his decision—to remove the presumption in its entirety. Based on the evidence, that decision would appear to go against the weight of the evidence. In particular the Australian Law Reform Commission recommended that it be redrafted. As I said, we all accept that it needs to be redrafted, but there is considerable angst in relation to the removal of the presumption altogether and the fact that, as we move through report after report after report, the Attorney-General has not acted consistent with recommendations of previous reports.

We'll now go to the body of evidence and look at the two reports by the Family Law Council on families with complex needs in 2015 and 2016. Was the decision to remove the presumption a decision the Attorney made because of a recommendation in either of those reports?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Cash. As you've probably worked out, I'm not aware of those ones. Again, I will try to get a copy of those and come back to you—or you may be able to provide the answer shortly. As I mentioned before, the removal of the presumption is supported by evidence that shows that orders for shared parental responsibility are made in the majority of litigated matters and in the presence of family violence and safety concerns. I mentioned the Australian Institute of Family Studies research findings. They supported the removal of the presumption, as they stated in their Senate submission. Again, stakeholder feedback on the exposure draft also reaffirmed that this misconception can lead to vulnerable parties agreeing to unsafe and unfair parenting arrangements and can provide ongoing avenues for continued coercive and controlling behaviour between partners where family violence is an issue.

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

We will continue to go through the reports. The answer is: it wasn't, because the reports didn't make a recommendation to repeal the presumption. The reason I'm going through it report by report is that we're talking about a body of evidence here and the weight of evidence. The point that I'm making—and I believe Senator Hanson, through the evidence she is reading into the record, is also making—is that the Attorney has represented to the Australian people that there were more than two dozen inquiries into the family law system and has implied that the repeal of the presumption was supported by those inquiries. Based on the evidence that I'm going through—and we will continue to go through more evidence—this is, I argue, both untrue and misleading.

We'll now look at the final report of the COAG Advisory Panel on Reducing Violence against Women and their Children from 2016. Again that was considered an incredibly important report at the time it was handed down given it was a COAG, Council of Australian Governments, advisory panel. I ask again: was the decision to remove the presumption a decision the Attorney made because of a recommendation in that report?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Cash. I haven't actually seen that COAG report and I can't recall it, but, as I mentioned before, stakeholder feedback on the exposure draft also reaffirmed that there is a misconception that can lead to vulnerable parties agreeing to unsafe and unfair parenting arrangements and can provide ongoing avenues for continued coercive and controlling behaviour between partners where family violence is an issue.

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

I am sure Senator Hanson when she seeks the call again will be able to give you stakeholder feedback to the exact opposite effect. What we're establishing here as we go through report after report after report—some of them bipartisan and unanimous and, in fact, heralded at the time as landmark reports—is the true basis for the repeal. Everybody agrees that it needs to be redrafted. Everybody agrees that it needs to be simplified. But the government has gone much further than that. It has been redrafted completely to remove it, so it is no longer there. We are establishing that the true basis for the repeal is an ideologically motivated policy decision of this Attorney-General.

If we could now go to the 2016 Victorian Royal Commission into Family Violence—and I'm more than happy for you to ask the more than capable advisers that are in the box, who, I'm assuming, were responsible for the drafting of the legislation and, as such, would have taken into consideration these reports. Was the decision to remove the presumption a decision the Attorney made because of a recommendation in that report?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I'll try and get an answer when we've got access to the report, but, as I mentioned, the removal of the presumption is supported by evidence that shows that orders for shared parental responsibility are made in a majority of litigated matters. I talked through the Australian Institute of Family Studies and their submission. I'd also mention the stakeholder feedback around the exposure draft and also the work of the joint committee that recommended it as well.

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

Again, the body of evidence that Senator Hanson and I are presenting would seem to be mounting in favour of: there was not a recommendation from any of these reports to actually repeal the presumption in its entirety.

I'll now turn to the 2017 inquiry by the House of Representatives Standing Committee on Social Policy and Legal Affairs. I won't ask; I'll just tell—that seems to be lot easier, because we don't seem to have the answers with us. That report itself also didn't make a recommendation to repeal the presumption. In fact, what the committee recommended was as follows, at recommendation 19:

The Committee recommends that the Australian Law Reform Commission, as part of its current review of the family law system, develops proposed amendments to Part VII of the Family Law Act 1975 (Cth), and specifically, that it consider removing the presumption of equal shared parental responsibility.

So, to be clear, the recommendation of the committee was not to remove the presumption but to expressly ask the ALRC whether it should be removed—two fundamentally different concepts. Is that correct?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding, from that report, is that there were stakeholders who made clear that the presumption should be repealed.

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

Where is that reflected in recommendation 19? It reads:

The Committee recommends that the Australian Law Reform Commission—

this is the actual recommendation; if there's another recommendation that I don't have in front of me, please feel free to read it out, but where is what you just said recommended in this:

The Committee recommends—

that's the recommendation: 'recommends'; this is what they recommended—

that the Australian Law Reform Commission, as part of its current review of the family law system, develops proposed amendments to Part VII of the Family Law Act 1975 (Cth), and specifically—

it's quite a specific recommendation—

that it consider removing the presumption of equal shared parental responsibility.

All I'm asking you to confirm for the Hansard record is: the recommendation of the committee was not to remove the presumption—please take into consideration recommendation 19; I'm happy for the advisers to take it into consideration—but to expressly and specifically ask the ALRC whether it should be removed. Is that correct?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

What I mentioned was not recommendations but stakeholder feedback, which said that it should be repealed, Senator Cash. In terms of the report, I'm happy to see if we can find an answer on that and come back to you.

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

Well, Senator Hanson, the good news is that committees can make recommendations, but we don't need to refer to the recommendations, just refer to the stakeholder feedback that backs in the position that the government takes. So we can just throw out all of the reports and the recommendations, as long as we can find a submission—and that's easy to find; the government just directs someone to put in a submission that supports the government's position. This committee has taken a very, very bizarre twist tonight because it would appear that it doesn't matter what report Senator Hanson and I put to you, if you don't like the recommendation you'll just find a submission that supported the view you've put forward, even though in the final recommendation it does the exact opposite.

I would then put to you that, despite the implication in the Attorney's words, the decision to remove the presumption was not informed by the recommendation. I'll make it a rhetorical question, because you're clearly not going to refer to the actual recommendation. You'll refer to submissions that back in the Attorney-General's position. That's not what the recommendations said.

That was a recommendation that was directed to the ALRC, and it actually followed through, as Senator Hanson knows. On 14 March 2018, it released an issues paper that expressly referenced the committee's suggestion of removing the presumption of equal shared parental responsibility as a potential reform to the decision-making framework in part 7 of the Family Law Act. But, in fact, after the ALRC did its due diligence, in its report it recommended the wording of the presumption be changed, and it even prepared draft legislation to do so. Isn't that correct? Please ask the advisers. I don't expect you to know.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I think I've already mentioned that the ALRC suggested rewording it to be a presumption of joint decision-making about major long-term issues. However, the government considers that renaming the presumption would not sufficiently address the safety concerns associated with its application. For example, the Australian Institute of Family Studies reports from 2015 and 2022 show that orders for shared parental responsibility are made in the majority of litigated matters, and in the presence of safety concerns. This is a strong indicator that the presumption is not working as intended, even where matters are determined by a court.

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

I believe it's therefore worth me reading the words of the ALRC report into the Senate Hansard for the benefit of the Senate and for anybody who may pick up this Hansard. This is actually what the ALRC said:

The ALRC supports the idea that a presumption of shared parental responsibility serves as a good starting point for negotiations between parents and recommends that the concept be retained. The ALRC also agrees in principle with the existing exceptions to that presumption, but recommends redrafting the exceptions as set out in Appendix G.

… the wording of the presumption should be clarified to avoid the confusion surrounding the term 'equal shared parental responsibility' and the conflation with equal time. The ALRC recommends that, to reduce confusion, s 61DA be redrafted to refer to 'joint decision making on major long-term issues'.

In practice, this would reflect the effect of orders that are currently made for equal shared parental responsibility, while eliminating most causes of misunderstanding of the provision.

The ALRC then went on to capture this discussion in an express recommendation—recommendation 7—in the following terms:

Section 61DA of the Family Law Act 1975 (Cth) should be amended to replace the presumption of 'equal shared parental responsibility' with a presumption of 'joint decision making about major long-term issues'.

Can I confirm again that the Attorney has not implemented that recommendation? In fact, he's ignored the ALRC's express comment that the presumption serves as a good starting point and should be retained.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The government's approach of a full repeal is the most direct approach to addressing misunderstandings about this issue amongst the general public. I mentioned before and acknowledged the ALRC suggested wording. I mentioned the Australian Institute of Family Studies' reports from 2015 and 2022 that showed the orders for shared parental responsibility are made in a majority of litigated matters, and in the presence of safety concerns. In our view, that is a strong indicator that presumption is not working as intended, even when matters are determined by a court. The Australian Institute of Family Studies, from the very first evaluation of the 2006 family law reforms after the introduction of a concept of equally shared parental responsibility, found that there was a common misunderstanding that the presumption related to shared care time and, further, the study noted that this confusion has resulted in disillusionment amongst some fathers who find that the law does not provide for fifty-fifty custody.

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

Minister, you keep raising the point that it was taken out for 'safety concerns'. Can you please tell me what the safety concerns were?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

As I said, the government's approach of a full repeal is the most direct approach to address the misunderstandings about this issue amongst the general public. That is the government's approach. What I've been talking about is the Australian Institute of Family Studies, which has done reports and made submissions. From the very first evaluation of 2006 family law reforms after the introduction of the concept of equal shared parental responsibility, it was found that there was a common misunderstanding that the presumption related to shared care time. Further, that this study noted that this confusion has resulted in disillusionment amongst some fathers who find out the law does not provide for fifty-fifty custody. So that is part of the government decision-making.

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

I can accept what you've said there and the report that's been handed down, but numerous times you have referred to taking it out due to 'safety reasons'. Can you please tell me what are the safety reasons?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The removal of the presumption is supported by evidence that shows that the orders for shared parental responsibilities are made in the majority of litigated matters and in the presence of these family violence and safety concerns. The Australian Institute of Family Studies research findings support the removal of the presumption, as they stated in their Senate submission. AIFS's evaluation research together with AIFS's compliance and enforcement project indicates how the application of a presumption in favour of joint parental responsibility is unworkable and in many cases unsafe, compounding the existing risk for families accessing the court and other formal resolution pathways. And, as I mentioned, stakeholder feedback on the exposure draft also reaffirmed that the misconceptions led to vulnerable parties agreeing to unsafe and unfair parenting arrangements, and can provide ongoing avenues for continued coercive and controlling behaviour between partners and where family violence is an issue.

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

But then that's not in light of what Senator Cash has presented here with the documentation that there actually was an over-30 per cent reduction in it, because, since this was brought in by the Howard government in 2006, there has been a reduction in it, and we've established here the ALRC reckon that it should be kept in. You've got Professor Chisholm who's actually said it. Professor Patrick has also said it. It should be included in there. You've taken from advocacy groups. Minister, I asked you the question, and you said self-interest groups have advised you to actually take this out. Is one of the groups the Greens?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I don't know what the Greens's position is on this, Senator Hanson, but you mentioned Professor Chisholm. As I said before, a lot has changed since 2009, and Professor Chisholm has expressed support for the approach of the repeal through evidence to the Senate inquiry.

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

Minister, I wanted to take you back to what I was asking you earlier with regard to the new evidence. I refer to that where there is any new material. That concerns me. Do you understand which paragraph I'm at—whether there is any new material available that was not available to the court that made the final parenting order? I'm going back to that because, after a case has been settled, what if there has been something that's happened, perhaps with domestic violence, in that period of time? By taking the word 'new' out, you're not allowing them to bring new evidence to the court; it has to be based on evidence they had previously in court because you've taken out the word 'new'. I don't understand—if you can please clarify this for me—why you have taken out 'new'. If the case is a year or two old, or even a few months old, if anything has happened, what evidence are you going to limit them to presenting to the courts again because circumstances may have changed?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Hanson. Subparagraph 65DAAA(2)(b) of the bill stipulates that, when deciding whether it will be the best interests of the child to reconsider a final parenting order, the court may take into account whether there is any new material available that was not available to the court that made the final parenting order. The proposed amendment removes the word 'new' from this subparagraph in response to stakeholder feedback that the inclusion of 'new' could lead to legal arguments about what 'new' means. This amendment makes it clear the court may have regard to material that was in existence at the time of the court proceedings but was not considered by the court at the time.

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

If circumstances change, that new evidence cannot then be introduced to the court because it was not evidence at the time of the previous case. Therefore, by taking out 'new', if anything changes over that period of time you will not then allow them to introduce new evidence.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Hanson. My understanding is that it actually broadens it to allow any evidence that's relevant to be considered, including something that is new.

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

I want to go to—and I asked you this question before—the costs. You referred me to section 117. Besides that, under the current legislation what you've got now is the general capability of the court towards costs. What's been correctly highlighted is that you've now got rid of the fact that the contravention of orders is evidence that is unsubstantiated highlighting the fact—they can't award costs against the person. You've gone back to general capability for the costs to be awarded. By changing the legislation people who bring evidence before the courts are not going to have costs awarded for them, against the litigant. My understanding is that, by changing this now, people who have claims to make or contraventions of orders are not going to get costs awarded to them, which is going to stop this in the court system.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Hanson. My understanding is the courts will still have the capability to administer a costs order, to award costs in any matter.

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

I'm putting up another amendment with regard to fees. This is a big issue that was raised by a lot of people in the Senate inquiry—the costs that are outlaid and what it costs them to represent themselves or buy legal representation in the court system. My amendment here, on sheet 2132, is:

The Minister must cause an independent review of the operation of this Act to be conducted within 6 months after the third anniversary of the commencement of this Act.

…   …   …

Without limiting subsection (1), the review must consider the following in relation to legal practitioners acting in proceedings in the Federal Circuit and Family Court of Australia (Division 1) or in family law or child support proceedings (family law practitioners):

(a) the appropriateness of fees charged to clients by family law practitioners;

(b) the extent that family law practitioners are overcharging and overservicing their clients;

(c) the effectiveness of sections 68 and 191 (parties to act consistently with overarching purpose) in reducing overcharging and overservicing by family law practitioners;

(d) measures to prevent excessive fees being charged by family law practitioners.

Will you consider my amendment?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Senator Hanson, the government will not support your amendment. The review, as proposed by this bill, is the preferred approach by the government that allows for the most appropriate review mechanism to be decided in due course. In addition, with regard to the matters that you raise around legal fees, the scope of the review that we propose in the legislation would be settled in due course.

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

As I said, that's a huge disappointment because that was one of the main things that was raised. People have lost their homes over this and are paying off debts years afterwards. They then have to pay child support on top of this—what has been awarded against them. All they are fighting for is the right to have contact with the children. So that's another blow to them. They thought there might be some justice and they would be able to rein in what these lawyers are charging, the overservicing and keeping cases going. What is happening is just outrageous, and you've turned a blind eye to this and are not listening to what the Australian people said in their submissions to the last inquiry that was held by the joint committee. I have another amendment that I will be putting up. It is about the family violence orders. It says:

(5) For the purposes of paragraph (2)(a), if the court is considering a family violence order, the court must have regard to the circumstances in which the order was made, including whether the making of the order was contested by a person.

(6) If a family violence order was not contested by a person the court must:

(a) consider whether there is actual proof of violence relating to the order; and

(b) if the court considers that there is no actual proof of violence, the court must not take the order into account when determining what is in a child's best interests.

(7) In considering the matters in subsection (6) the court may direct a party to the proceedings to adduce evidence that there is actual proof of violence relating to a family violence order that was not contested by a person.

(8) If the court considers that:

(a) there is no actual proof of violence in relation to a family violence order that was not contested; and

(b) that the order was raised for purely tactical reasons;

the court may make an order that the party to the proceeding who raised the order in evidence (including a legal practitioner representing the party) pay some or all of the costs of another party, or other parties, to the proceedings.

Would you support this amendment?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

We won't be. It is a matter for the court what weight is given to any evidence put before it. The government has proposed amendments which ensure the court must expressly include consideration of the history of family violence abuse and neglect in any family violence orders when determining the parenting arrangements that would promote the safety of the child and their caregivers.

Passage and commencement of the Family Law Amendment (Information Sharing) Bill 2023 will establish enhanced information sharing powers, enabling the court to seek family violence, child abuse and neglect risk information directly from state and territory child protection, police and firearms agencies. This will ensure the court has a wholistic picture of family violence and child abuse risk to support their decision-making in the best interests of the child.

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

Minister, raising domestic violence in that amendment was basically about protecting people from false allegations that have been brought against them. Surveys have been held—and this has come out from the judges—about what is happening in the court system. In 90 per cent of these hearings, the judge found no risk of sexual harm to the child or children. In 25 per cent of these cases, the allegations were found to have been deliberately misleading. In another 46 per cent of these cases, the allegations were mistaken. This has been happening in the court system. I'll also refer to Family Court judge David Collier. He said that most of the allegations made to the court, over the 14-year period he was there, were for the parent's own gain and were used as a tactic to stop their partner from getting the children. Also, 90 per cent of the parents alleging child sexual abuse in contested hearings from 2012-19 were the mother. The fact is this is used. It was part of the inquiry as well. A lot of the evidence and submissions were about allegations of sexual abuse, which are being thrown around like confetti by too many people out there, and no proof is warranted.

You talk about the courts. I don't know if you're aware that just last week the Queensland Magistrates Court practice direction No. 3 of 2023, put this in their documentation:

Where a person charged with a domestic violence offence does not have legal representation for a summary proceeding for a domestic violence offence and pleads "not guilty" or declines to enter a plea, the follow process will apply.

The Court will make directions for the delivery of a Brief of Evidence in accordance with Annexure B of this direction. The review mention of the proceedings will be seven weeks after the making of the directions.

At the review mention the Court will consider whether any witness is a protected witness. If a witness is a protected witness the Court will consider making orders in accordance with Annexure C of this direction. If no orders are required a trial date will be set at the review mentioned and the matter will progress in the ordinary way.

I raise this because the Magistrates Court believes that someone who's dragged before the courts has a right to defend themselves against any domestic violence allegations brought against them. In fact, if a person is unrepresented in a court the judge cannot bring a case against them. The judge does not have to inform the court about the person who doesn't contest it.

My understanding is that a lot of people come before the courts. If they have legal representation, they are advised by their lawyers to contest without an admission to it. If you understand what I'm saying, they contest without an admission to it—that's if they have legal representation. I'll leave it up to Senator Cash while I find my notes.

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

It's consent without admission.

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

That's right—they consent without admission. Therefore, they have been put into a position where the courts take that into consideration. If you don't have legal representation, the courts cannot accept that. So they are then protected more. I'll tell people watching: 'Do not consent without admission. That can do you more harm in the court system. You should not consent to anything.' That is the problem.

My amendment is to protect people. We have no definition of domestic violence. There are numerous types of domestic violence: physical domestic violence, coercive domestic violence and other forms of domestic violence. But this is what I said to you yesterday: if you're going to present allegations of domestic violence in a family law court then, if there is proof of it, charges should be laid and it should be determined in another court, and then it can be presented to the family law court, not just put in an affidavit or said in the court on the spur of the moment to enhance a person's case. Will you look at putting this in? As I say again, my amendment is to protect people against false allegations. A number of judges have raised this point. They need protecting, because a lot of people use it as a defence of claims that are not true or of which there's no proof.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Hanson. Obviously, the issues you're talking about there would largely be dealt with by states and territories. The family courts deal with the most difficult cases, with less than three per cent of separated families coming before the court. Those matters often concern significant allegations of child abuse and exposure to family violence. The government's information-sharing bill will be critical to ensuring that judges have the best evidence and information available to them so that they can make well-informed decisions about the risk of maltreatment. This is also why these bills place children at the centre of the family law system so that decisions can be made in their best interests and to keep them safe. So, to reiterate, we won't be supporting your amendment, Senator Hanson.

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

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

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

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

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

equal shared parental responsibility—

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

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

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

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My evidence was that they recommended that it be repealed as part of their submission.

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

Again, though, the only evidence you put forward other than stakeholder feedback is a reference from the AIFS, which says that courts are making orders for parental responsibility even if there are safety concerns. That is the evidence you gave to Senator Hanson. The point I'm making is that is what you are in part basing the Attorney-General's stance in relation to the repeal on. What I'm putting to you is we have a small issue with what you've said, because the courts know the presumption doesn't apply if there are reasonable grounds to suspect abuse or violence. They also know presumption is rebuttable. If you accept that, and I put it to you that you have to because its in the legislation, even if these issues have been raised and the courts have due duly considered them, they have then taken them into consideration and therefore have decided that, despite this, it is appropriate to make an order for shared parental responsibility. So, again, I put to you: the only way your reference to the AIFS evidence can in any way justify the repeal of the presumption is if you're saying the courts have got it consistently wrong. Is that what you're saying? It's the only way you can justify your evidence.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That is what the Australian Institute of Family Studies submitted—that it should be repealed. If you have an issue of why they provided that, you should take that up with them. They and other stakeholders also found that people didn't raise allegations because of a misunderstanding of the presumption as well.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The majority of stakeholders who commented on schedule 2 were supportive of a redraft of part VII, division 13A to improve readability and make the division easier to understand. The Law Council of Australia submitted:

… the proposed redraft streamlines and improves the readability of Division 13A, which will likely result in more consistent application by the courts of that Division and greater understanding by parties … as to the consequences of non-compliance with an order and initiation of unmeritorious contravention applications.

The Family Law Council also endorsed the redraft, noting that it shifts the focus to attempting to resolve the underlying issue that gave rise to the noncompliance and with the issue of a potential penalty to be considered as a last resort, consistent with ALRC recommendation 42. However, a number of stakeholders raised specific concerns about the operational cost orders in the enforcement regime and the duplicity of a cost order provision being contained in this division, when the courts have a general power to make orders for costs in section 117 of the act. This has been addressed by adopting the Senate committee recommendation 3 to remove cost orders from division 13A.

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

Unfortunately, Minister, despite your answer, in its submission to the committee inquiry on this bill, this is also what the Law Council of Australia said:

However, while it is broadly supportive of Part 1 of Schedule 2 of the Bill, subject to the below recommendations, the Law Council has received feedback from the legal profession that Schedule 2 remains complex and difficult to understand overall.

That's not exactly consistent with the evidence and the answer that you have just provided to me in relation to my question.

This is, without a doubt, one of the most important schedules in the bill. Why do I say that? Because, for anybody listening in and for anyone who is involved or has been involved in family law proceedings, you will know that this deals with the enforcement of parenting orders. This is an incredibly important part of the bill because there are consequences in relation to you breaching one. Failures to comply with parenting orders are often some of the most difficult and damaging parts.

So, despite what the minister has said, if this schedule is complex and difficult to understand for people whose job it is to run family law matters, seriously, what hope is there for an unrepresented litigant? What hope does an unrepresented litigant have when the ACT Bar Association itself says this in relation to the legislation that will pass this Senate tomorrow:

The ACT BA does not consider that the proposed changes would make the division easier to understand. They are, instead, a different complex mess.

So, to anybody listening in, guess what? Don't be fooled by the Attorney-General of Australia's submission to you that says, 'Hey, guess what, I'm simplifying the system and making it easier for you,' because that's not what the ACT Bar Association says. And in response to what the minister said to me about the evidence of the Law Council of Australia, let me just reiterate what the Law Council itself says:

… while it is broadly supportive of Part 1 of Schedule 2 of the Bill, subject to the below recommendations, the Law Council has received feedback from the legal profession that Schedule 2 remains complex and difficult to understand overall.

To any person out there who thought you might be taking a step forward in relation to the enforcement of parenting orders, I hate to tell you that you're not. You're probably, quite frankly, better off with the current system. At least people understand that it's a complete complex mess. All you're going to be doing now is trying to interpret another complex mess.

I'll now turn to schedule 3. Schedule 3 amends the definition of 'relative' as it applies to an Aboriginal or Torres Strait Islander child to the following:

… a person who, in accordance with the child's Aboriginal or Torres Strait Islander culture, is related to the child.

In your government's amendments you have added the words, '(including, but not limited to any kinship systems of that culture)'. Minister, on average, how many people are related to an Aboriginal or Torres Strait Islander child on Palm Island, according to that child's Aboriginal or Torres Strait Islander's culture, including by virtue of kinship systems?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I don't have that information available to me at the moment, Senator Cash.

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

This is very dangerous because this is one of the points that has been raised as to why we needed further committee hearings and, in particular, why we needed to take this particular clause to rural and remote communities in Australia. Minister, tell me what the definition of kinship is.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It's not defined is my understanding. It would be determined on a case-by-case basis before the courts.

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

This is getting even more confusing. Does the government understand the implications of changing the definition to include 'but not limited to any kinship systems of that culture'? What does the government say to the Australian people and, in particular, the Aboriginal and Torres Strait Islander people who will be affected by this change in definition? What does the government mean by 'not limited to any kinship systems of that culture'? What are 'kinship systems of that culture'? Then we are going to move through Palm Island, Alice Springs, Melville Island and Ceduna, because you are right: it is going to differ in relation to each one. So what is the government's understanding of what that means?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The concept of kinship describes a person's responsibility towards other people, the land and natural resources. Kinship is a system that determines how people relate to one another and their surroundings, with the aim of creating a cohesive and harmonious community.

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

How many people can be in a kinship system?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding is it would be determined on a case-by-case basis by the courts.

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

For example, could 10 people be in a kinship system? Could 50 people be in a kinship system? Could 100 people be in a kinship system? I will assume that the department does have the answers to those questions, because this is an incredibly important potential consequence of the changes. What is going to happen to those people who are now included in this kinship system? There are actually potential legal consequences for them.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The government amendments have the effect that the expanded part of the definition of a member of the family includes Aboriginal and Torres Strait Islander concepts of family. Further, the government amendments and the current operation of the court notification obligations will be unchanged, and Aboriginal and Torres Strait Islander parties to proceedings will still be required to comply with them with reference to the definition of 'member of the family' but excluding the expanded component. This means that obligations will be the same for all parties and not more onerous for Aboriginal and Torres Strait Islander parties. The approach of the government amendments is more consistent with recommendation 5 of the Senate Legal and Constitutional Affairs Legislation Committee report on the Family Law Amendment Bill 2023 compared with the amendments proposed on amendment sheet 2070.

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

What elders in any of the communities in Palm Island, Alice Springs, Melville Island, Ceduna, Leonora, Penrith and Circular Head did the Attorney-General consult in relation to this change?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I mentioned before, in my answers to Senator Hanson's questions, that the department consulted broadly with Aboriginal and Torres Strait Islander organisations.

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

Unfortunately we don't have time to find out what those organisations were, so I'll just put this on the record. In its submission on the exposure draft of the bill, this is what the Law Council of Australia said:

Constituent Bodies have raised concerns that a definition of 'member of the family', which is inclusive of any relevant concept of Aboriginal and Torres Strait Islander family or kinship, but not specified as relevant in the particular circumstances of the case (as recommended by the ALRC), could, at times, result in unintended difficulties.

But—my comment here—who really cares about them? Certainly not the government. Back to the quote:

For instance, strangers to the litigation—who may not have anything to do with the care of the subject child—could have their health or police records subpoenaed and disclosed.

These are the unintended consequences I was referring to. Back to the quote:

It is inevitable that many people will find this invasive and will object to these records being produced or inspected. This will likely increase legal need and create additional costs and delay.

In its submission on the exposure draft of the bill, this is what the Law Council of Australia said:

In addition, this broadened definition would result in an extension of the notification provisions for disclosing involvement with child protection agencies. This imposes a more onerous notification requirement on Aboriginal and Torres Strait Islander families, which could effectively include all interactions between any member of the kinship group and child protection authorities. If this is not the intended purpose of the legislation, the Law Council recommends the inclusion of a provision clarifying that the notification requirement does not extend to certain persons within the kinship group who are not connected through the particular circumstances of the case.

So the effect of the change as introduced was to apply the notification obligation to a much wider group of people. You would have an obligation to notify the court even if the people involved were not raising the child, but you'd never need to raise it for a non-Indigenous family. I accept that your government's amendments belatedly change the definition to deal with the obligations to notify the court about family violence—I personally don't know why it took you so long—but how does your amendment deal with the risk of people being subpoenaed, as raised by the Law Council?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The Law Council were commenting on the exposure draft. The bill is different, and we've also got an amendment that goes to that issue as well.

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

Does the government know what the impact of this would be if someone in an Indigenous community—for example, in Palm Island—had their police records subpoenaed for litigation and they didn't even know about it?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I might get you to repeat that.

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

I'll put it slightly differently: how does the government amendment to the bill deal with the issue of subpoena of records?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The issuing of subpoenas is a matter for the court at the request of a party and is subject to the restrictions provided by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Legally represented parties may issue a maximum of five subpoenas. Permission for further subpoenas may be granted by the court. Self-represented parties must obtain the courts permission to issue a subpoena.

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

Unfortunately, for those listening in, it's 12 minutes past eight, and the government is guillotining debate on this at 8.30 pm tonight. So that means that, in relation to one of the most important bills to ever come before the Australian parliament, we do not have an appropriate time to actually interrogate it. I would have thought that—based on the questions that are being asked, the body of evidence that has been provided and the insufficient answers that are being given—anybody listening in would know we are not going to be doing justice to this bill.

The bad news for everybody listening in is this, though: this bill is going to pass the Australian Senate, and the very sensible and considered amendments that the coalition has put forward in a bipartisan manner will not get support. Unfortunately, the Australian people are about to find out what the impact of sloppy drafting and unintended consequences is.

At the outset of this debate, I said that there are very few things in the Commonwealth Attorney-General's portfolio that have a more direct impact on Australians than family law. Every year, thousands of Australians will find themselves going through the pain and sadness of separation, and, in a small proportion of those cases, disputes will be decided by a judge in Australia's family law courts. As a nation, we should aim for a system that resolves those disputes as quickly and cleanly as possible. Regardless of the circumstances, if children are involved, we should at all times prioritise their best interests.

The coalition's track record on family law is one of sensible, careful reform that recognises problems and looks to build bipartisanship wherever possible. In 2003 we recognised that outcomes in the family law system were not meeting community expectations, and we worked for years to build the bipartisanship that led to the historic, landmark 2006 reforms. Those reforms changed the approach to family law to reduce litigation—that is a fact; I've read out the evidence—and improve outcomes across the family law system. In 2019 we recognised that the Family Court system had become inefficient and slow, burdened by a dual court system that was drawing out the pain of family law litigation for too many families. The courts merger under the former government, which finally went ahead in 2021, has been a stunningly successful project—the evidence shows this—that has drastically reduced the wait time for Australian families.

Again, on this side of the chamber we acknowledge that there are parts of the family law system that are in need of reform. We have been consistent in this. Throughout this debate we have said publicly and repeatedly that we recognise that many of the issues this bill seeks to address are problems in need of a solution. We have been constructive. We have followed the recommendations of bodies like the Australian Law Reform Commission and the Law Council of Australia and the extensive work of committees like the Joint Select Committee on Australia's Family Law System. We have compromised where possible, and we are moving sensible amendments where we think we must, in one of the most difficult and sensitive areas of law reform. These amendments have been rejected by the Albanese government.

Sadly, I cannot say the same about this government's approach to the Family Law Amendment Bill. We do not agree with the solutions adopted in many places in this bill. It is not a bill that has been worked through over many years. It is not even a bill that has been subject to proper scrutiny. There are actually more schedules in the bill than there have been hours of committee inquiry. It is embarrassing. Even with the small amount of scrutiny that we have been able to give, it has become increasingly clear that the government consistently puts its ideological agenda over the best interest of Australian families. Let's face it: yesterday the government started falling apart after just 90 minutes. We come in here today and find that this debate is being guillotined.

It is worth recapping, though, the very many areas where there was a better way forward in relation to the Family Law Amendment Bill. In its changes to the parenting framework, we have the absurd situation of the Attorney deciding to remove every piece of guidance from the objects and principles, and we went through that in detail. By removing those provisions, the government sends a disturbing message: the parenting framework is no longer intended to achieve outcomes like parents cooperating in the care of their children.

On equal shared parental responsibility, we have talked through this tonight and I am not satisfied with the answers we have been given. In fact, it's the exact opposite. It has only confirmed what so many have said: a political and ideological approach of a left-wing Labor government. We have the Attorney-General of Australia ignoring the recommendations arriving from the years of careful reviews, which acknowledged that the drafting could be improved—which, as I said, we agree with—but repeated that the principle of equal shared parental responsibility is sound. Instead of the measured approach that adopts the work of independent and expert bodies, as I have outlined tonight, the Attorney-General has adopted the preferred ideological approach of three Labor backbenchers.

The changes to the enforcement of parenting orders have been criticised as replacing one complex mess with another complex mess, and the amendments to the definition of 'relative' and 'member of the family' for Indigenous children are fine in principle but beset with unintended consequences that have never been road-tested with communities on the ground.

The independent children's lawyers framework, for some baffling reason, requires an additional hearing into the conduct of the lawyer. What is this going to do? One, it's going to act as a disincentive. Why would you bother? Two, it adds time, cost and delay.

The changes to case management and procedure give no regard to the objective—such an important objective—of minimising acrimony in family law matters. As we know, the change to schedule 8 is a political decision, recommended by no-one. But we have had the minister here tonight telling us how the Attorney-General relied on different pieces of evidence. The change to schedule 8 is a political decision that is intended to give Mr Dreyfus a trigger to demerge the courts after the next election. This is despite the body of evidence that shows that the merger of the two courts has had positive benefits for families in Australia.

What is so sad is that these types of changes could have been fixed. We could have made the bill better. But, at every step, Labor has put ideology over the needs of Australian families. Australian families would do well to remember the arrogance and intransience of this government and, particularly, of this Attorney-General. As I said, there are parts of this package that we agree with, and there are other parts where it is pretty obvious that there are problems. It is not just the opposition saying there are problems; it is a body of evidence, experts, saying that there are problems. The government has been warned. When the family law system now produces delays, problems and sadness, quite frankly, that is going to be on the Attorney-General's head.

I will now briefly ask some final questions, in the last nine minutes. In fact, I might actually see if Senator Hanson wants to make any comments. There are nine minutes left, Senator Hanson. I've made my final statements, if you'd like to make any comments.

James McGrath (Queensland, Liberal National Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

I think that the minister will respond.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

By leave—I move government amendments (1) to (47) on sheet RU122, amendment (1) on sheet ZC233, amendments (1) to (4) on sheet ZE215 and amendment (1) on sheet ZC234 together:

(1) Clause 2, page 3 (at the end of the table), add:

(2) Schedule 1, item 6, page 5 (line 12), after "safety from", insert "being subjected to, or exposed to,".

(3) Schedule 1, item 6, page 5 (after line 27), after subsection 60CC(2), insert:

(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or a member of the child's family.

(4) Schedule 1, item 6, page 5 (line 32) to page 6 (line 2), omit paragraph 60CC(3)(a), substitute:

(a) the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:

(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and

(ii) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(iii) to develop a positive appreciation of that culture; and

(5) Schedule 1, page 6 (after line 20), after item 10, insert:

10A After subsection 68P(3)

Insert:

(3A) Paragraph (3)(c) does not require the court to give a copy of the order or injunction to a child if the court is satisfied that it is in the child's best interests not to receive a copy of the order or injunction.

(6) Schedule 1, item 12, page 6 (lines 24 to 27), omit the item, substitute:

12 Application provision

The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this item commences;

(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.

(7) Schedule 1, item 16, page 7 (line 28), after "child,", insert "then, except to the extent the order otherwise specifies,".

(8) Schedule 1, item 25, page 9 (lines 18 to 20), omit subitem (1), substitute:

(1) Subject to subitem (2), the amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this item commences;

(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.

(9) Schedule 1, item 26, page 10 (line 22), omit "new".

(10) Schedule 2, item 21, page 15 (lines 23 and 24), omit "(or must in certain circumstances with respect to costs orders)".

(11) Schedule 2, item 21, page 16 (line 8), omit "program;", substitute "program.".

(12) Schedule 2, item 21, page 16 (line 9), omit paragraph (d).

(13) Schedule 2, item 21, page 16 (line 10), after "the court finds", insert "on the balance of probabilities".

(14) Schedule 2, item 21, page 16 (line 16), omit "bond;", substitute "bond.".

(15) Schedule 2, item 21, page 16 (lines 17 to 19), omit paragraph (c).

(16) Schedule 2, item 21, page 16 (after line 29), at the end of section 70NAA, add:

Note: A court may also award costs against a party under section 117 if satisfied there are circumstances that justify it doing so.

(17) Schedule 2, item 21, page 16 (lines 33 and 34), omit paragraph 70NAB(a), substitute:

(a) supporting compliance with child-related orders; and

(18) Schedule 2, item 21, page 17 (lines 9 to 11), omit paragraph 70NAB(e), substitute:

(e) providing for sanctions for a person who contravenes a child-related order without reasonable excuse.

(19) Schedule 2, item 21, pages 17 and 18 (table), omit the table, substitute:

(20) Schedule 2, item 21, page 19 (after line 14), after section 70NAD, insert:

70NADA Burden of proof in relation to reasonable excuse

A person who claims to have a reasonable excuse for contravening a child-related order has the legal burden of proving the excuse.

(21) Schedule 2, item 21, page 19 (lines 27 and 28), omit "(or must in certain circumstances)".

(22) Schedule 2, item 21, page 21 (line 7), omit "did not spend", substitute "missed".

(23) Schedule 2, item 21, page 22 (line 21) to page 23 (line 25), section 70NBE to be opposed.

(24) Schedule 2, item 21, page 24 (lines 14 to 16), omit note 1.

(25) Schedule 2, item 21, page 24 (line 17), omit "Note 2", substitute "Note".

(26) Schedule 2, item 28, page 34 (line 4), omit "70NBE,".

(27) Schedule 2, item 30, page 34 (line 8), omit ", 70NBE".

(28) Schedule 2, item 32, page 34 (line 15), omit ", 70NBE".

(29) Schedule 3, item 2, page 37 (line 13), after "culture", insert "(including but not limited to any kinship systems of that culture)".

(30) Schedule 3, items 3 and 4, page 37 (lines 15 to 22), omit the items, substitute:

3 Subsection 4(1) (paragraph (b) of the definition of relative )

Repeal the paragraph, substitute:

(b) in paragraph (1AB)(e)—has the meaning given by subsection (1AC); and

(c) in paragraph (1AB)(ea)—has the meaning given by subsection (1AD).

4 Paragraph 4(1AB)(e)

Repeal the paragraph, substitute:

(e) the first person is or has been a relative of the second person within the meaning of subsection (1AC); or

(ea) except for the purposes of sections 60CF, 60CH and 60CI—the first person is or has been a relative of the second person within the meaning of subsection (1AD); or

5 Subsection 4(1AC)

Omit "subsection (1AB)", substitute "paragraph (1AB)(e)".

6 After subsection 4(1AC)

Insert:

(1AD) For the purposes of paragraph (1AB)(ea), if a person is related to an Aboriginal or Torres Strait Islander child in accordance with the child's Aboriginal or Torres Strait Islander culture (including but not limited to any kinship systems of that culture), the person is a relative of the child.

Note: This subsection adds to the persons who are relatives of a person within the meaning of subsection (1AC). The difference is that the addition in this subsection does not apply for the purposes of sections 60CF, 60CH or 60CI, which relate to informing courts of certain matters (see paragraph (1AB)(ea)).

(31) Schedule 3, item 5, page 37 (lines 23 to 29), omit the item, substitute:

7 Application provision

So far as the amendments of the Family Law Act 1975 made by this Schedule apply in relation to proceedings, they apply in relation to:

(a) proceedings instituted on or after the day this item commences; and

(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.

(32) Schedule 4, heading, page 38 (line 1), at the end of the heading, add "and Hague Convention proceedings".

(33) Schedule 4, item 2, page 38 (after line 16), after subsection 68LA(5A), insert:

(5AA) The independent children's lawyer has discretion in relation to the following matters (subject to any order or direction of the court with respect to the matter, for example under paragraph 68L(2)(b) or paragraph (5D)(b) of this section):

(a) when, how often and how meetings with the child take place;

(b) when, how often and how the child is provided with an opportunity to express views.

(34) Schedule 4, item 2, page 39 (line 12), omit "68L(2)(a)", substitute "68L(2)(b)".

(35) Schedule 4, item 3, page 39 (lines 13 to 16), omit the item, substitute:

3 Application provision

The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this item commences;

(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.

(36) Schedule 4, item 6, page 40 (lines 14 to 17), omit the item, substitute:

6 Application provision for items 4 and 5

The amendments of the Family Law Act 1975 made by items 4 and 5 of this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this item commences;

(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.

(37) Schedule 4, page 40 (after line 17), at the end of Part 2, add:

7 Subsection 111B(1B)

Repeal the subsection.

(38) Schedule 5, item 5, page 42 (before line 10), insert:

102QA Interactions between provisions and with other powers of court

(39) Schedule 5, item 6, page 44 (line 5), after "instituting proceedings", insert "under this Act".

(40) Schedule 5, item 6, page 44 (after line 14), at the end of subsection 102QAC(1), add:

Note: Proceedings includes cross-proceedings and incidental proceedings (see subsection 4(1)).

(41) Schedule 5, item 6, page 44 (line 15), after "include", insert ", but is not limited to,".

(42) Schedule 5, item 6, page 44 (line 20), at the end of subsection 102QAC(2), add:

; (d) financial harm.

(43) Schedule 5, item 14, page 48 (lines 10 to 15), omit the item, substitute:

14 Application provision

The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this item commences;

(b) proceedings instituted before, and not finally determined by, the day this item commences.

(44) Schedule 5, item 18, page 51 (lines 23 to 28), omit the item, substitute:

18 Application provision

The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this item commences;

(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.

(45) Schedule 6, item 6, page 57 (line 23), after "material", insert "might".

(46) Schedule 6, item 6, page 57 (after line 31), at the end of subsection 114Q(3), add:

Note: Paragraphs (a) to (g) are examples of material that might be sufficient to identify a person to a member of the public. The examples are not exhaustive (see section 15AD of the Acts Interpretation Act 1901) and might not be sufficient to identify a person in every circumstance.

(47) Schedule 6, item 6, page 59 (line 4), omit "a person who is a member of the party's family or a friend", substitute "one or more persons who are members of the party's family or friends".

(1) Page 68 (after line 22), at the end of the Bill, add:

Schedule 10 — Review of amendments

1 Review of amendments

(1) The Minister must arrange for the conduct of a review of the operation of the amendments made by this Act (other than the amendments made by Schedules 8 and 9). The review is to start as soon as practicable after the third anniversary of the day that Schedule 1 to this Act commences and be completed within 12 months of the day the review starts.

(2) The Minister must arrange for a report of the review to be prepared.

(3) The Minister must table copies of the report in each House of the Parliament within 15 sitting days of that House after completion of the report.

(1) Schedule 1, item 7, page 4 (lines 21 to 24), omit paragraph 67ZBD(2)(a), substitute:

(a) abuse, neglect or family violence to which a child to whom the proceedings relate has been, or is suspected to have been, subjected or exposed;

(2) Schedule 1, item 7, page 6 (lines 11 to 14), omit paragraph 67ZBE(2)(a), substitute:

(a) abuse, neglect or family violence to which a child to whom the proceedings relate has been, or is suspected to have been, subjected or exposed;

(3) Schedule 1, item 7, page 8 (line 33), omit "may", substitute "must".

(4) Schedule 1, item 7, page 9 (line 32), omit "(3)(c)", substitute "(3)(b) or (c)".

(1) Schedule 1, item 7, page 11 (lines 3 to 19), omit section 67ZBL, substitute:

67ZBL Review of provisions

(1) The Minister must arrange for the conduct of a review of the operation of this Subdivision, and regulations made for the purposes of this Subdivision, to start at both of the following times:

(a) no later than 12 months after the commencement of this section;

(b) as soon as practicable after the end of 3 years after that commencement.

(2) The review mentioned in paragraph (1)(b) is to be completed within 12 months of the day the review starts.

(3) Both reviews must consider the effectiveness of the Subdivision and regulations in meeting the objectives of the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems endorsed by the Meeting of Attorneys-General.

Note: The National Framework could in 2023 be viewed on the Attorney-General's Department's website (https://www.ag.gov.au/).

(4) The Minister must arrange for reports of both reviews to be prepared.

(5) Copies of a report must be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the report.

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

Minister, I'll go back to my amendment to do with legal fees. When I referred to the legal costs, I forgot to say what the committee said in the second interim report about legal costs. I put this in my amendment and I ask you to look at it because the legal fees are killing a lot of families. The committee recommended a legislated limit on the fees a legal practitioner may charge a party to a proceeding, set at either $50,000 or 10 per cent of the combined value of the asset pool, including superannuation, whichever is higher. The recommendation provides that greater fees may be charged in exceptional circumstances with leave of the court.

The government shares the committee's concern with reports of excessive legal costs experienced by parties that are disproportionate with the value of the property pool in dispute. This is a complex issue, as there are a number of contributing factors to the cost of family law matters, such as delays in court processes, the issues in dispute, the behaviour and attitude of the parties, timely access to support services and alternative forms of dispute resolution, the duration of proceedings and the number of court events.

Minister, I ask you again: will you please consider looking at capping fees in these court proceedings? You keep saying 'it is in the best interests of the child'. It is in the best interests of the child that their parents actually do have a roof over their head and don't lose that roof in the court system to the cost of lawyers' fees and charges. Some people were saying that the fees were around $200,000 to $300,000. One family paid over $1 million in court costs. So I am asking you again: will you consider capping legal fees, which was the committee's recommendation? The other thing that you've taken out are the costs that can be awarded for false allegations of domestic violence. Why did you take out the costs to do with domestic violence?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I've already answered those questions, Senator Hanson.

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

I can't get an answer out of you! Anyway, we're down to five minutes and I'm just going to sum up how I've assessed this whole lot. I appreciate the fact that, when we put this extension of time forward to ask you the questions, the crossbench and Senator Pocock actually supported this extra time that we have been given to have this debate tonight.

The answers that I believe that I've got out of the minister tonight have been poor, pathetic and unprofessional. I don't believe he's really across the brief and he doesn't know exactly what he's doing. It's very good that he has his team of advisers there to tell him what to say and do. I'm here by myself. There are no advisers around me. I'm trying to deal with this, trying to get my head across this piece of legislation. I've had to get my head across a piece of legislation that they've drafted, but, at the end of the day, there are pages and pages of amendments to their own bill which they couldn't even get right. I'm trying to go through these amendments to their own bill, and they couldn't even get it right in the first place.

The biggest thing that I found tonight that we've spoken about as part of this legislation is the fifty-fifty shared parental responsibility, and they have completely taken it out of the bill. It was recommended by the ALRC to actually not take it out but to reword it. The minister stood and said it was confusing—that was their excuse! It is confusing to people. They thought they had fifty-fifty per cent of custody over the children. That was determined, and it's up to the legal people to explain to them what it is about.

As I have said, the people in the courts who are actually going for custody—all they're fighting for is time to see their own children, to be involved in their children's lives. You're actually cutting them out of that now. You're going to leave it up to the court system to give full responsibility to one parent. You're cutting the other parent out of their life. Do you know the psychological damage you are going to be doing to these children, because who knows that that one person is going to make the right decisions for that child?

Then, what happens? I'll tell you of a case where the mother got custody of the child and she didn't want the father to see the child until the child was 13 or 14 years of age. We're talking about a child who, at that time, was four years of age. She didn't want the father to have anything to do with the child, but the courts didn't say that. They said, 'No, the father can have contact with the child every second weekend.' So what happened was, she was given full custody of the child as far as schooling, education, health—everything. Guess what? She couldn't handle the child. By the time the child was seven years of age, she rang up the father and said, 'You can take him.' Now the father has the child, but she's got the full responsibility of controlling the healthcare card, the schooling, the education and all the rest of it or there are threats. So what does the father do then? You've taken away the shared parental responsibility so the father has ended up with the child. This mother said, 'No, you can't see her until 14.' She couldn't control the child anymore—it was disrupting her life with the new boyfriend. So she's actually dumped the child on the father. This is not just an isolated case. This is what's happening.

I'm just saying: Review this legislation. Have a look at these couple of things that have been raised here tonight because they're important. It's not just my point of view. I'm speaking on behalf of a lot of parents out there—not just men. I stand and fight for men's rights, by all means I do. I also fight for women's rights, but I think men have copped a raw deal in our court system because I think a lot of people have lied about domestic violence issues to gain support for their own case, and this is so wrong.

This is so wrong, so I'll tell the parents out there: You brought that child into the world. You are both parents to that child, and it's about time you get rid of your selfishness and your vindictiveness and you actually start treating that child not as a piece of equipment or an asset that you can pass around and use at your convenience. It's about you conversing with each other, communicating and, as the government says, what's in the best interests of the child. That's my main concern; it's about the child. Many people want to be fantastic, good parents out there, but you're denying them that right.

Progress reported.

Senate adjourned at 20:30