Henry Pike (Bowman, Liberal National Party) Share this | Hansard source

I start by thanking the member for Riverina for such a meaningful contribution. I share his sentiment of recognising the contribution made by the former member for Riverina Kay Hull AO in this area of law. It is, of course, an area in which once upon a time MPs spent an inordinate amount of time dealing with casework from constituents in relation to family law. Thankfully—at least this is my experience—we don't tend to get as many complaints as was the experience 20 years ago, and I think that's an important improvement because we're able to focus on other areas. But it is, of course, an area of law that does require reform, and I'll touch on aspects of that this afternoon.

The Family Law Amendment Bill 2023 offers significant changes to the Family Law Act 1975. The measures and amendments introduced by this bill form the government's response to the 2021 inquiry by the Joint Select Committee on Australia's Family Law System. We've heard from the previous speaker about how family law has been the subject of many committee hearings over the life of Australia's House of Representatives and the broader parliament, but this is, of course, the latest edition of reform that the government's now responding to.

There is much in this bill that few, including the opposition, would have any serious issue with, but the big issue—the big contentious matter—within this bill is the removal of the prior presumption of equal shared parental responsibility. The removal of that one assumption of equal shared parental responsibility goes further than what was recommended by the Australian Law Reform Commission, it was knocked back by the joint select committee that investigated this matter in the life of the last parliament, and it doesn't even come close to being universally accepted or even, it appears, being a majority opinion within the legal profession or stakeholder groups. The bill also deals with other quite sensitive matters, particularly regarding the enforcement of parenting orders and the definition of a relative in relation to Indigenous families. I'll touch on those a bit later.

The coalition, of course, acknowledges that the Family Law Act is flawed. It's a piece of legislation that, like most pieces of legislation that we have on the books, requires some tinkering from time to time. I certainly hear it from different perspectives within my community. I do a lot of doorknocking in my electorate of Bowman, and I hear concerns regarding Australia's family law structures. I hear it from parents; from grandparents in particular; from carers, including foster carers; from lawyers within my electorate; and, of course, from children who've come to the door with their parents and grandparents and talked to me about the issues that they've been facing within their own family circumstances.

The joint select committee that existed in the life of the last parliament examined the need for reform extensively. We should note that their inquiry had 1,700 submitters, with many providing evidence to the committee during 13 different in camera hearings—not quite as many as the 2,000 submitters to the inquiry 20 years ago, which the member for Riverina referred to, but still that's a very extensive consultation. Among the consultations we undertake in this parliament, that one is certainly on the higher end of engagement and participation, as well it should be, because it is one of the core areas of law that this parliament has legislative power over.

One of the issues raised during the course of that investigation was section 61DA of the Family Law Act, which deals with shared parental responsibility. Let me dive into the detail of that a little bit, if you can indulge me. Section 61DA provides:

When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

The act explains this does not provide for a presumption about the amount of time the child spends with each parent. That's a common misconception. It actually means both parents should be involved in important decision-making about significant events in the life of the child, whether it be where the child is going to go to school or medical decisions made in relation to the child—things of that nature. It's not a presumption around fifty-fifty custody.

The presumption of equal shared responsibility, as opposed to equal time, does not apply in certain circumstances, and the previous speaker, the member for Riverina, touched on that. Those circumstances are: where 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 abuse of that child or another child who, at the time, was a member of the parent's family or that other person's family; or, secondly, in instances of family violence. That's an important point, and a lot of that has been lost in the commentary around this bill—that there is the presumption of shared responsibility, but where there are instances of family violence or where there are reasonable grounds to suspect abuse, that is out the door. That's the first hurdle they have to get over.

Unfortunately, there is a widespread misunderstanding, and the joint select committee's investigation into this uncovered the widespread nature of the misunderstanding, that this means that it's equal share of custody, as opposed to equal responsibility over major decisions. The evidence suggested it was leading many unrepresented parties, and there are a lot of unrepresented parties or people who are misguided as to how the system works, to believe they have no choice but to agree to equal time and enter into informal agreements based on a misapprehension or misunderstanding of how the law works. It's important to note it's not law that's wrong, but it's people's perceptions of what that law means. It's a misunderstanding of how the law actually works, as opposed to the law actually being misguided or wrong in effect.

Where the committee landed on this, in recommendation 17 of their investigation, was:

The committee recommends that the Australian Government urgently draft and release an exposure draft of legislation which would amend section 61DA of the Family Law Act 1975 to address the current misunderstanding of the provision that equal shared parental responsibility equates to equal time with the children.

The committee landed on the fact that they wanted it to be amended to provide greater clarity and remove the misunderstanding, as opposed to removing the presumption altogether. The new government's response to this recommendation, which was released in January this year, largely agreed with this recommendation. The response noted that the government will consult with the community on any such changes.

The coalition was expecting that the government's approach to this reform would be in line with the recommendations of the joint select committee's investigations. Rather than steering a sensible and balanced middle course of meaningful reform informed by the extensive consideration of the opinion of experts and those working within the system with the previous parliament's inquiry, this bill instead pushes a potentially divisive approach to family law. The coalition is deeply concerned by this approach. When it comes to family law reform the principles of stability and security need to be absolutely at the centre of everything we do. We understand that extensive stakeholder consultation makes better policy. With that in mind, the coalition is recommending that this bill be referred to the Legal and Constitutional Affairs Committee for inquiry, and the findings of that inquiry will inform the final position of the coalition on this bill.

These reforms have been through a process of rigorous consultation and expert analysis. The outcome of that process was considerably different to what is now being proposed through this bill. I'm calling on the Attorney-General to not rush the passage of this bill or seek to circumvent the formal process of consultation, because too many Australian families and far too many children will be impacted by that decision. It's something that should be taken very carefully, with great consideration and consultation.

It is clear that some women's groups and some other groups support the removal of equal shared responsibility. They argue that the current doctrine can procure parenting agreements that are unfair or unsafe, and it leads to widespread misunderstanding and increased custody litigation. While this is perhaps fair from a certain perspective, there is a lack of clear evidence that repealing the assumption will be effective in addressing the concerns that they have. This doubt is shared by many parts of the legal profession—for instance, the Law Council acknowledges there is diversity of views on the effectiveness of repealing the matter entirely. Similarly, the ALRC and the family law practitioners associations of Queensland and Western Australia are concerned that these proposals have gone too far and it could result in potential unforeseen consequences. Father's groups have also been concerned about the severity of these changes, suggesting that the amendments would significantly undermine or permanently change the currently accepted rights of the family in separation, including both children and parents.

I noticed Professor Patrick Parkinson, a professor of law at the University of Queensland—a great university—noted in his submission to the exposure draft that schedule 1:

… goes very far beyond what is necessary and justified in order to remedy perceived deficiencies in the current law.

There is a significant risk of increased lawfare. A new precedent takes years, of course, to form through case law. This certainly risks destroying the stability and efficiency that the former coalition government brought to the Family Court. The Family Court and family law in Australia is certainly something that has been a work in progress, and I'd hate to see it undermined or undone through intentions that are obviously well meaning. But I'm concerned that we have many experts raising concerns about that, and I think it warrants further investigation.

There are currently two factors that courts consider in determining the best interests of the child: firstly, the benefit to the child of having a meaningful relationship with both of their parents and, secondly, the need to protect the child from physical or psychological harm. This bill would amend that to have five areas of focus, most notably including the removal of any reference to a meaningful relationship with the child's parents, shifting safety considerations from a primary to a secondary concern, and a new requirement to consider the developmental, psychological, emotional and cultural needs of the child. Again, these changes do little to improve the operation of the act. Removing the meaningful standard to relationships between parents and children only opens greater opportunities for needless litigation. Reducing the importance of safety considerations could potentially be physically or psychologically damaging to the child. Considering cultural and psychological needs requires the qualified opinion of experts, further slowing down the legal process and making resolution more distant, stressful and expensive. Labor's proposed amendments effectively sacrifice standards, safety and efficiency in key areas.

Schedule 2 of the bill creates a new regime for the enforcement of parenting orders, attempting to resolve a longstanding lack of clarity in the legislation. Unfortunately, in this bill the government has failed to achieve this as well. According to the ACT Bar Association, the proposed changes would not make the division easier to understand; they instead create a complex mess.

There are also practical concerns regarding the amendments' impacts on Indigenous Australians. Expanding the definition of 'relative' could cause privacy breaches and expand issues about family violence across kinships. Kinship groups can of course be incredibly large. There is no guarantee that anyone within a broad kinship group could step into the responsibilities of a relative under the act. There's no clear evidence that we've seen that Indigenous groups have been consulted in the development of this amendment. This is something that needs further consideration and expert analysis.

Again I urge the Attorney-General to refer this bill to the Legal and Constitutional Affairs Committee, and then wait and heed that advice on amendments that will produce the meaningful, practical reform of family law that this country needs. Steadiness and stability need to be core to the whole process. We were on a really good path of reform in this space, and at the end of the last parliament there was bipartisanship around this approach and broad support from experts and stakeholders. These amendments represent a significant departure from the course that we were on. I urge the government to get this bill back on that course, where it can achieve support across the parliament.

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