Zali Steggall (Warringah, Independent) Share this | Hansard source

I rise to support the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. These bills address recommendations made by the Australian Law Reform Commission final report, made some time ago now, and implement elements and recommendations made by the Joint Select Committee on Australia's Family Law System. The bills aim to simplify the framework for determining parenting arrangements and moves to ensure promotion of the best interests of the child.

I should say at the outset that this is an incredibly difficult area of law in Australia. This is actually an area of law that, over a significant number of years, has had the most reviews and reports that successive governments have failed to implement. I commend the government and the Attorney-General for bringing forward these changes. It's a difficult area to get right. This is highly emotional and highly personal for those that it impacts.

In November 2021 I commended to the House the third interim report and the final report tabled by the Joint Select Committee on Australia's Family Law System, of which I was a member. During the course of that inquiry we heard so many distressing stories, accounts from men and women who had gone through the system and it had let them down, and children who had been impacted by the system. So it does fall on the government and this parliament to ensure the system works better. I called on the government to act on these reports because two previous reports from the committee and the ALRC recommendations have just been sitting on the shelf like so many others from previous inquiries. I am really pleased to see these recommendations come forward.

The breakdown of family relationships is often one of the very first interactions with the court system that individuals will have. It's incredibly confronting. It's very difficult and emotional. So many in the community are turning to the inquiries and these changes and looking for the implementation of recommendations, and they feel that there can be progress in such a distressing area. Even in circumstances where it may well be too late for their circumstances, they want to ensure that it is a better process for others.

Before coming to this place I was a family law barrister for some time. I had the experience of acting for women, men and children in those proceedings. I know how distressing this area of law can be. It goes to the core of people's lives. There's a really important element in that, which is time—time that you cannot get back and the time that it takes for these proceedings to be resolved. Of course family law involves property and parenting, and whilst one is your financial circumstances the other is incredibly personal because it is your family relationship and your opportunity with your children. We know children are only small for a very short period of time, and that's why our system working in a timely way is so incredibly important. I would hope that there is a time we approach family law, separation and breakdown of relationships in a bipartisan way, because when politics get involved in these issues you see a real weaponisation of people's emotions, fears and distress, and I don't think that ends up in good outcomes. We know that with a bipartisan approach to this we can create a system that will be fairer and that will implement recommendations from experts, and hopefully we can progress this area.

Sadly, in modern society over 40 per cent of relationships end in separation. While many of those separations are conducted fairly and amicably, there are still many Australians who rely on the family law system to settle their divorce or separation and resolve disputes around property and children. Some three per cent end up in court for resolution. That three per cent of separations is the most acrimonious and where there is that breakdown of communication and an inability to resolve. Most of us know someone or personally have been through separation and the Family Court process. To varying degrees, this process is adversarial, confrontational, emotionally unsettling, financially crippling and life changing.

If there's one thing we can't get back, it's time, and reviews and reports have repeatedly said that's one of the major problems with the system. It's imperative that our family law system be functional, but it needs to be fair and it needs to be well funded. It all goes to that question of time. The time it takes for disputes to be resolved and determined allows disputes to fester. It allows problems or cracks to get wider. You can't make up time if you haven't had that opportunity to spend time with a child.

One of the key issues identified in past reviews was the cost associated with the family law system. I know in that respect many people who have provided evidence have often looked at family law practitioners and barristers as being a part of that problem. The difficulty is actually with the time, because the more a dispute goes on, the more expensive it gets. It's also about the make-up of how we approach family breakdown. It's about the adversarial nature of the family law courts and whether we should move to a more inquisitorial model. I know that is a very difficult thing to achieve, but there have been incredibly promising trials of less adversarial processes, where we're looking at bringing people together to find the common ground rather than accentuating the dissent and the areas they disagree on.

Another issue is the distressing delays in the current court system. The role of family consultants is incredibly important. Again, this is an area of law where a judicial officer has to break it down and come to a view on what will be in the best interests of the child according to the versions of various parents. Parents often know their child best, but it comes down to one person's word against another, and that can be really difficult. That is where experts that have a slightly less vested approach come in. They can have a bit more perspective. They understand the research and data around the best interests of the child. Expert witnesses and independent children's lawyers play a huge role in the family law system. From my experience, in practice the independent children's lawyer has a huge sway over the ultimate outcome. It's important that they be well funded and well qualified for the role, but it's also important that they properly represent that independent view of the child, as well as the best interests.

Enforcement of contraventions and family law orders is a vexed and wicked problem with the family law system, because judicial officers, as much as they will come to a view and determine final orders, do not step out of the courtroom and go into people's lives. They do not go and see and make sure that people are actually complying with what the court has ordered them to do. And the whole structural soundness of the system relies on people actually complying with orders, and you can't just call police and everyone out every time there is a contravention. So enforcement and contravention of family orders is a very difficult and frustrating area when you balance it with the other factors of cost to get to orders in the first place.

And then, of course, there is the issue of family violence. In family law proceedings, how the family law system and family violence jurisdiction interact is incredibly important, and it has been quite vexed. We have real dysfunction at the local court level when it comes to ADVOs and protection orders and how that interacts with and impacts family law proceedings, especially around parenting. There's a lot of poor advice. There's often a lot of misunderstanding of the process, and this adds to the vexation and the frustration with the system. I would have to say there are a lot of misunderstandings around the system as well. I think sometimes there are a lot of glib statements that are made for political reasons that don't actually reflect the law. So it's really important to try to take the emotion away and actually look factually at what the law provides.

I do support what the bill is addressing, but I have got a couple of areas where I raise concern that there isn't sufficient clarity. I will propose amendments to that effect, but I also note from discussions with the Attorney-General that these will hopefully be considered during an inquiry process.

There is a misunderstanding of the presumption clause to reinforce that the best interests of the child are paramount. I do welcome that the legislation is repealing certain provisions and sections, making it clear that it is placing the best interests of the child as the paramount consideration in parenting orders. And it moves away from the often misinterpreted shared parental responsibility provision, because people misunderstand that to equating to a presumption of equal parental time. To be fair, the wording is not clear. The wording leads to that misunderstanding. But it's really important and hard to explain to parents that this is not about their right as a parent. This is actually around the child's right and what is going to be in the best interests of the child—to form a relationship with both parents, to have a more stable life, to be a child and to not have to be shuffled around. Often, it's really hard to explain that, but it's really important to make clear that that is the centrepiece of the law.

So I do agree with these proposed amendments, which simplify the list of best-interest factors that a court must consider in making parenting orders and take away the initial presumption, because that presumption around shared parental responsibility carried with it the presumption of consideration of shared and equal time or substantial and significant time with each parent. Essentially, that was superseding the consideration of best interest of the child.

I agree with introducing a standalone test for the best-interest factor for Aboriginal and Torres Strait Islander children which will require the court to consider their right to enjoy their culture and expand the definition of 'family' to align with their culture. This is incredibly important. I had a number of cases where we had to address this issue, and it is challenging with the way the legislation was to truly bring into the courtroom give due weight to consideration of those factors.

I should say, though, that it is not just Aboriginal and Torres Strait Islander children for whom these factors should be considered. I believe there may will be an amendment in the consideration stage and an inquiry, but this is really important for children from migrant backgrounds, where cultural factors are incredibly different. We are a very multicultural society, and there are different expectations and cultural traditions that really need to be considered for a child for their best interest, because the best interest of the child is for that particular child before the court. Their cultural identity, their background, is incredibly important.

I welcome the codification of Rice and Asplund. For those non-practising, Rice and Asplund was the test established in a court decision: once final orders have been achieved in the parenting dispute, what are the circumstances when a court can be asked to re-look at those orders? Keep in mind that when a court makes final orders in parenting disputes it is taking into account factors right up until that child turns 18. The child ageing and growing up is not in itself a change of circumstances. We have to be really clear about how this works, because parents—parties—go to great expense and to great emotional distress and anxiety to get to final orders. It is often the result of years of disputes and litigation. So to be dragged back to court within two years by a dissatisfied party is incredibly counterproductive and distressing and, I would say, against the best interest of the child. So I welcome this amendment that codifies the factors of Rice and Asplund, but I will move an amendment to make very clear when these factors should be considered. It should be as an interim hearing. It should be a threshold test where you consider whether or not there has been substantial change in circumstances before taking the parties down the road of a significant additional final hearing.

I welcome family consultants having additional powers in relation to implementing standards for family report writers to improve their quality and the requirement for independent children's lawyers to speak and meet with children. Really important is the parental responsibility provision, which is in relation to long-term decision-making and how that should be done. There should be a requirement not just to consult but to make reasonable efforts to consult.

In relation to family violence, there is still much work to be done, but enhanced information-sharing, which will support the family court's responsiveness to instances of risk and family violence, child abuse and neglect, is important. Enforcement is a massive area of frustration, so I do welcome the amendments that make clear the process, a special list for consideration and the orders that are open.

There is still some room for improvement, and that I will address with amendments. I welcome that there is going to be a review of the merger of the courts and that that will be brought forward by two years to ensure the new structure is providing families with a safe and accessible, efficient resolution of family law disputes. I understand that the Attorney-General has more recommendations to be implemented in this area, but I really call on my colleagues here in this place to try and approach this issue in a bipartisan way for the welfare of parties involved.

Proceedings suspended from 12:59 to 16:00

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