Graham Perrett (Moreton, Australian Labor Party) Share this | Hansard source

I rise to speak on the Family Law Amendment Bill 2023. The first concern of our family courts should be what is in the best interests of the child. In my opinion, it should also be the second concern, the third concern and so on. This focus should be non-negotiable. Why would we want a system which doesn't prioritise the interests of the child when it comes to making potentially life-changing decisions? The Howard government was hoodwinked back in the early noughties, and too many Australian children have been paying the price ever since. The first sentence in Leo Tolstoy's novel Anna Karenina is:

Happy families are all alike; every unhappy family is unhappy in its own way.

Any family law barrister, or any lawyer who has ever worked in family law, knows that it is one of the most difficult areas of our justice system. All too often love turns to hate and logic turns to passionate beliefs that are often wrong.

I should stress that most disintegrating couples work it out themselves, and they do so with the help of the courts and with the best interests of their children at the forefront of their minds. However, there are some occasions when the state must step in to offer guidance, sometimes with a carrot, sometimes with a stick, sometimes with a stick-shaped carrot and even sometimes with a carrot-shaped stick. But, whatever it takes, that's when we need to step in to look after this nation's children, and I'm proud to be a part of the Labor Party, which has long committed to improving our family law system. I particularly note the endeavours of the Attorney-General in this area for a long time. We need improvements to make it safer, simpler to use and more accessible and a justice system that delivers just and fair outcomes for families.

Unfortunately, the family law system was used as a political tool by the Howard-Abbott-Turnbull-Morrison governments for the past two decades. It has been subject to more than two dozen inquiries in that time—for example, the Australian Law Reform Commission's 2019 report Family Law for the Future—An Inquiry into the Family Law System (report 135). I also mention the 2021 Joint Select Committee on Australia's Family Law System. I was a member of that committee. Consistent among all of these reports is the fact that our family law justice system contains way too much overly complex and at times confusing legislation. This confusion makes it a nightmare for already stressed parents to navigate, especially if they are families who cannot afford access to legal representation.

From my many years working as the shadow assistant minister to the former shadow Attorney-General, the Hon. Mark Dreyfus, I know that there is way too much confusion within the community when it comes to family law. All too often confusion and misunderstandings mix with that horrible swirl of love and hate and history. Throw in a dose of vulnerable little people and intermeddling in-laws, grandparents and all sorts of people, and you too often have a recipe for protracted and harmful litigation. It's a recipe for a meal that nobody likes the taste of and nobody wants to waste their money on. This has to stop for everyone's sake, especially for the sake of our children.

Now is the time to address the backlog of recommendations for legislative reform, and that is what the Albanese government is doing. We'll begin with those that elevate children's best interests to where they should be: the central concern of this legislation. This bill will achieve this by clarifying the needlessly confusing framework in the Family Law Act for making decisions about parenting arrangements. It will now make it clear that the best interests of children are the priority. I repeat that: it will now make it clear that the best interests of children are the priority. This involves simplifying the list of best-interest factors that a court must consider to provide a contemporary framework for decision-making. It also involves repealing the misleading presumption of equal shared parental responsibility and associated requirements for courts to consider specific care-time arrangements.

No child is a fraction. No family is neatly cut in half. Life is messy in the real world. Families are all smudged edges and grey, not the black-and-white creations of mathematicians or even lawmakers. I know this fact will upset one particular One Nation senator from Queensland, but it is the truth. Life is always messy, and when love goes bad it is particularly so.

The presumption of equal shared parental responsibility was inserted into the Family Law Act by the Howard government, by the then Attorney-General, Phillip Ruddock. I am hopeful that Mr Ruddock did so with the best of intentions, but sadly, things didn't turn out that way. One of the reasons for this failure is that the presumption has been misunderstood since day one. Too often it leads to parents believing they have a right to equal time with their children after separation—fifty-fifty; seven days on, seven days off; and all of that. This has never actually been the law. Often the results have been disfraction manifest, but it was never intended to be so. The ramifications for this misunderstanding have led to devastating consequences—mothers agreeing to shared access with abusive fathers, decisions which put both them and their children in danger. And the opposite occurs when mothers do take it to court and the court makes the decision not to grant access to the abusive father, with the father mistakenly thinking the court has got it wrong and supping on that poisoned chalice of injustice, mistakenly, again and again and unable to move on with our lives, dwelling on the past when they should be moving on with their lives. Sadly, this can feed into their anger and lead them to make terrible decisions which can lead to tragedy. This common misconception also leads to lengthier and in many cases spiteful court cases.

All recent inquiries have recognised that these provisions are widely misunderstood as creating rights to equal time. Removal of these provisions will ensure that everyone understands that the child's needs, rather than the parents' needs, are the focus, the laserlike focus, of the court. The amendments mean that parents who are making post-separation parenting arrangements will be focused on what arrangements will be in the best interests of their child. Simplifying the process for parents will do away with false hopes based on misconceptions of the law. Equipping parents with greater certainty will allow them to make quicker decisions, armed with the right knowledge and the right information. This can then mean avoiding lengthy disputes, as courts won't be clogged with cases where a parent is under the misapprehension of a right to automatic shared custody.

Anyone who has been involved in family law understands that emotions are always high. I particularly note my former adviser Michelle Howe, who informed my understanding of family law, and I thank her for her great contributions to my understanding in this area of law. Making clearer to all parties their rights and that the child's needs are the most important will allow decisions to be made as early as possible, and that's a win for everyone.

The bill also clarifies the orders that a court can make in relation to decision-making on major long-term issues and, in the absence of court orders, encourages parents to consult on these issues where it is safe to do so. I note that point 'where it is safe to do so'. The bill also recognises the important role culture plays for Australia's First Nations children. Culture is an essential part of who we are for all of us. It is the case for everyone, but it is particularly significant when it comes to the oldest culture on earth. Cultural connection is an important part of a First Nations child's life, and it's important that this is taken into account when considering what is in that child's best interest. Staying connected is so important for these children, as it helps to shape their identity and their place in the world, keeping them connected to culture and family, which is something we've learned from past royal commissions into moving children away from their First Nations communities. Theirs is a culture that is more than 65,000 years old and is maintained through the passing of lore and knowledge to children so they can continue that story. The bill also expands the definition of 'member of the family' to include persons to whom Aboriginal and Torres Strait Islander children are related according to their culture.

The Queensland government has already recognised with the Torres Strait community with the passing of the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act. That Queensland act recognises Torres Strait Islander lore in Australian law, and establishes a process for legal recognition of Torres Strait Islander traditional child-rearing practices. This was such a monumental step for the important role culture plays in the rearing of Torres Strait Islander children. Again, this all goes back to the parties turning their minds to what is in the best interests of the child that comes before the court.

That is what the changes contained in this bill have at their heart. Part of this reform includes strengthening children's voices in family law matters. The bill introduces a requirement for independent children's lawyers, ICLs, to meet directly with children. ICLs not only are able to gather important information directly from the child but also have the ability to speak to the child's counsellors, schoolteachers and principal. They can also examine documents and evidence from child welfare, police and the parents where and when required. This is an important step in ensuring that what's best for the child is front and centre of the decision-making.

This will hopefully, coupled with extra powers to the court, protect parties and children from the harmful effects of protracted and adversarial integration. Anyone who has been involved in a long drawn out Family Court case knows that it is not a great process for anyone—win, lose or draw. There are no winners in the end. So these changes will help facilitate better outcomes not just for the child but for everyone involved—the parents et cetera.

The bill will also increase the judicial discretion to appoint ICLs in matters under the Hague Convention on the Civil Aspects of International Child Abduction. This change will greatly assist when one or both parents have connections through citizenship or other connections to a foreign country, as half of Australians do. These are even more delicate matters, and this small but important change is overdue.

When we're looking at the best interests of the child, we recognise the importance for a child to maintain a relationship with both parents and other family members, and this bill will require the court to take this important notion into consideration when making parenting orders. An important caveat to this is, of course, the safety of the child. I hope we all agree in this House that the safety of the child trumps the maintenance of connection to parents. The state is a bad parent, but the safety of the child should be paramount.

I have heard politicians and witnesses argue differently, but this can never be the case. We don't want a violent father or a violent mother to be given access to a child, thus putting the child in danger of harm and abuse which will stay with them for a lifetime—or even worse. This goes back to where I started. Everything in these changes before the chamber comes back to that core principle. The court must always have an effect, when a decision is made, by considering what is best for the child.

Another issue that has caused concern both in legal circles and with the general public is what restrictions there are around the publication of family law proceedings, the first notion being privacy. This bill will make it clearer and easier to understand what exactly can and cannot be published around matters. We are all aware of the monumental change that was made with the merger of the Family Court of Australia and Federal Circuit Court. It's important to understand what impact this change is making on the ground, so the Albanese government is bringing forward by two years the review into the structural reforms randomly made by the Morrison government. We can't sit around and wait that long to see whether this change—that, incidentally, no professional body was calling for—has made. What difference is it making? Did the Morrison government make a bad situation even worse—hence, bringing on that review? This new structure must provide a safe, accessible and efficient resolution of family law disputes for the sake of everyone involved.

We are also moving to clarify the Federal Circuit and Family Court of Australia Act so that dual appointments to division 1 of the Federal Circuit and Family Court of Australia and family courts of a state are permitted. A provision, to this effect, was previously contained in the Family Law Act 1975 and was omitted in the enabling legislation that brought into effect the FCFCOA. This amendment will restore the previous legislative arrangements that should have remained in place since the act's commencement in September 2021.

These changes came about by the department listening, by the government listening. The department received 436 submissions over 50 ministerials and the Attorney-General's office received 950 pieces of correspondence in the form of campaign letters. It's backed by National Legal Aid and Women's Legal Services Australia. They will not be a surprise to anyone. Specifically, the removal of the presumption of equal shared parental responsibility and having the best interests of the child at the centre of decisions is something that I have brought forward with a private member's bill in the previous parliament, supported by the Labor caucus.

I know that there will be nonsense peddled by certain people saying that women are liars and can't be trusted, that it's all the woman's fault and they're just punishing us because they hate us et cetera. All of that is bunkum. I will always call out such nonsense and lies propagated through the loud but misguided foghorns. When you look at the cold, hard facts, nothing they say is backed up by evidence. You can go to the comments made by researcher Jess Hill, who slapped down all their comments. I put this legislation to the chamber and hope that it will be supported by both sides of the parliament.

See this speech in context