Kate Chaney (Curtin, Independent) Share this | Hansard source

I rise to speak in support of the amendments to the Family Law Act, which I believe will make the system more accessible to those who need it and will make sure that the safety and security of children is put first. Family law is a highly adversarial, emotive area of law, and no area is more so than part VII of the act, which deals with children. The families who look to the Family Law Act for guidance or end up in the family law courts are often angry, grieving or both. It's a time in a family's life when they need clarity and compassion. But over time Australia's family law system has become more complex, convoluted and confusing for any family that has the need to use this area of law.

The purpose of the Family Law Act 1975 is to assist families in dispute resolution and to look after children involved in family breakdown. The law is there to ensure children are protected from harm, they're supported after a family separation and that decisions are made in their best interests. However, the complex, costly and time-consuming system does not always provide a supportive and welcome place for children. According to the Centre for Excellence in Child and Family Welfare, children often remain voiceless and lack autonomy over decisions made in their best interests.

While only three per cent of separating families get to a point where they need to have parenting arrangements determined by the court, so many other separating families and lawyers rely on family law to mediate their own arrangements. If we want a law that can be used by anyone who needs it, we need clear and concise legislation. Shortcomings of the current family law system have been in 12 reports since 2009, most recently the 2018 Joint Select Committee on Australia's Family Law System and the 2019 inquiry by the Australian government Law Reform Commission into the family law system. With this background I'm pleased to support any reforms to the family law system that make it a better, easier, fit-for-purpose system that works in the best interests of the child.

The Family Law Amendment Bill 2023 does some really good things. This bill intends to place children's rights in the centre of the family law system and give them an increased voice in decision-making. It simplifies the factors considered in the best-interest test. It expands the notion of family. It gives increased weight to connection to culture for Aboriginal and Torres Strait Islander people. Importantly, it amends clause 60B, which has led to confusion about a presumption of equal time.

I welcome the amendments aimed at ensuring that the best interests of children are placed at the centre of the system and its operation. While this has been the intent of previous iterations of the act, these amendments make it clearer. According to the National Children's Commissioner, Anne Hollonds, the simplification of the objects clause in part VII, children, more comprehensively gives effect to Australia's obligation to protect the rights of children. This is a good thing.

The amendments to section 60CC, which outlines how a court determines what is in a child's best interests, are also positive. Previously the Family Law Act drew a distinction between primary considerations and additional considerations. I note that several stakeholders have raised concerns about removing the previous hierarchy of interests, because it could give judicial officers too much freedom in interpreting and determining the best interests of the child. However, I believe that removing a hierarchy of considerations gives judicial officers the appropriate flexibility and the ability to weigh up the safety, needs and anything else that's relevant to the particular circumstances of the child.

I particularly support the addition of a directive for a court to consider the rights of an Aboriginal and Torres Strait Islander child to have the opportunity to maintain their connection with community, culture, country and language. As the WA Aboriginal Family Legal Services said in its public submission, this clause is a key mechanism to ensure that a child's Aboriginal and Torres Strait Islander status, cultural rights and other cultural issues are brought to the attention of judicial officers. I will be supporting any amendments that also require cultural and linguistically diverse children to be afforded similar considerations.

The WA Aboriginal Family Legal Service also welcomes the introduction of an extended meaning of 'member of family' to recognise Aboriginal notions of family and kinship. I do note, however, that the proposed definition of family and this amendment differs from the definition of family in the Children and Community Services Act 2004, which may cause future complexity.

Finally, I support the clarification in the amendment that makes it clear that there is no presumption of equal time under section 61DA of the Family Law Act. While equal shared parental responsibility was not intended to be a presumption of equal time, it has been interpreted like this, potentially detracting from a focus on the child's best interests. The way this was drafted was confusing. Youth Law Australia at UNSW said:

In our experience, the confusion surrounding the presumption … has led to many families agreeing to unsafe care arrangements in cases resolved by consent

Whilst I appreciate it is in the child's best interests to maintain personal relations and direct contact with both parents on a regular basis, it should not be assumed that this means equal time between both parents. It's imperative to raise community awareness about this change, including specific training for legal practitioners, family dispute resolution practitioners, family counsellors and family consultants.

I also support the Family Law Amendment (Information Sharing) Bill 2023. The ALRC review found that improvements are required to judicial gaps within the family law system, which in part is because family law is segregated across state and federal legislation. The family law system remains confusing and traumatic for many who go through it in an already vulnerable time. We need to keep improving the system to make it simpler, fairer and focused on supporting children and their parents in a difficult time. These amendments are necessary and important, and I commend the government for actioning the recommendations of the ALRC review.

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