Shayne Neumann (Blair, Australian Labor Party) Share this | Link to this | Hansard source

It's a great oddity of Australian family law that although the Australian Constitution section 51(xxi) says the Commonwealth has the power to make law with respect to marriage and subsection (xxii) says the Commonwealth has the power to make law in relation to divorce, matrimonial causes, parental rights and the custody and guardianship of infants, Commonwealth governments of both persuasions, conservative and Labor, vacated the field until 1959, when the Matrimonial Causes Act came into being. It commenced operation in February 1961, and that act has provisions which we would find utterly reprehensible. The concept of fault divorce still remained there, as did five-year separation. There were other grounds for divorce: adultery, desertion or refusal to consummate. It had a provision in the law for the restitution of conjugal rights, which is just an astonishing thing in today's understanding. Habitual cruelty, rape, sodomy, bestiality, drunkenness, intoxication by drugs, frequent conviction or imprisonment were a whole range of grounds for divorce.

The brainchild of Lionel Murphy and Gough Whitlam in the mid-1970s saw no-fault divorce brought into this country, with the Family Law Act commencing operation in 1976, and for the first time we saw men and women being treated with equity and equality. Previously, women were very much disadvantaged, and we saw it in the states and territories. For example, in Queensland it was very hard, before the Matrimonial Causes Act, to get divorced. It was very difficult. Western Australia and Victoria were more liberal. New South Wales had a provision that one act of adultery by a man was a ground on which, provided there was aggravation, a woman could divorce the husband. But one act by woman would actually constitute the ground for a man divorcing his wife. It's extraordinary in today's environment.

The Family Law Act, which had one ground for divorce—irretrievable breakdown of marriage, evidenced by people living separately and apart for a duration of 12 months—was revolutionary. But also it was revolutionary in the sense that women for the first time had a fairer deal with respect to property provisions, because we had provisions that we know very well under the Family Law Act, such as section 79(4) and section 75(2), which took into consideration the contribution of women as homemakers and parents, or indeed both parties as homemakers and parents, but contributions generally and other factors, which were justified changes. We now have cooperative arrangements through the states and territories, eventually to the point where the Family Law Act's area of jurisdiction covers the field, though the Commonwealth government, in this country.

The legislation before the chamber today I think is a good piece of reform that changes a bad mistake made by the Howard government in this space back in 2006, and the changes have an enormous amount of support. The Law Council supports it. There have been dozens of reports in relation to family law in the last few years. But I think the changes here are focused on the best interests of children. They get rid of the hierarchical situation of primary and additional considerations and the misunderstanding that was so obvious if you practised in this jurisdiction, as I did for nearly a quarter of a century. You end up realising how often litigants were under the misunderstanding that equal shared parental responsibility meant equal time and how often people were misled by legislation which I didn't think was in the best interests of children. The Family Law Act needed change and needs change here today.

The government released an exposure draft in January this year, with an explanatory consultation paper. There have been hundreds of submissions and over 50 ministerial briefs, and the Attorney-General's office has received 950 pieces of correspondence in the form of campaign letters. Most of the stakeholders overwhelmingly support the changes that we're making here, and they respond to very persistent calls by women's and children's safety advocates to focus more on the safety of children and to think about the best interests of children. We are repealing the presumption of equal, shared parental responsibility and providing a more concise and understandable piece of legislation in part VII of the Family Law Act. I think this will be safer, simpler, easier and more accessible, and I think it will be more just and fair for all litigants, in person as well as those represented by lawyers.

It's important for people who might be listening to understand what part VII of the Family Law Act says currently and how it needs to change. There are some good provisions in part VII of the Family Law Act, but section 60CC talks about the primary considerations and then focuses on additional considerations. There are, all up, about 14 considerations that people need to look at, which is a lot. That's because 95 per cent of cases where people institute proceedings get settled. A lot of people look at a case, and they never even go into court. They do it by parenting agreements, their own arrangements and consent orders. Even when people institute proceedings, it's usually with conciliation conferences, mediation and counselling, and, if they're represented by good lawyers, they take every step to try and negotiate an outcome that's in the best interests of children. But I don't think the provisions in the current law are focused on the best interests of children, because, while there are some statements there that are important, they are complex and difficult to understand.

One of the biggest problems is in section 61DA. That is the presumption that, in the best interests of children, there be equal, shared parental responsibility. That doesn't mean equal time, but people have assumed it means equal time, and the previous Howard government actually sold it a bit that way. When the court looks at it for decision-making, whether in an interim hearing or a final hearing, it has a look at whether, if there is an equal, shared parental responsibility, there should be equal time. If there's not equal time, should there be substantive time enjoyed by both parties in relation to the children? That might sound not that hard, but if you are in the course of that sort of proceeding, it almost gets to a point where judges and magistrates are quite often influenced in the way they determine cases. Most of them don't actually determine at a final hearing or even at an interim hearing. Most cases are resolved. That hierarchy of considerations, I think, makes it difficult particularly for women and children in an interim hearing. You see that in interim hearings all the time, where there is opportunity for influence to be put and for someone in an unequal power situation to influence the outcome.

I think a situation where the legislation is complex, repetitive and results in increased costs for clients is not in the best interests of children. I think there is very significant community confusion in relation to decision-making. There are many important schedules in this particular legislation—for a start, the idea of harmful proceedings and an order in that regard which is not quite vexatious, which concentrates, I might add, on the litigator, who initiates the order in the proceedings. The harmful proceedings orders concentrate on the effect on the respondent, and I think this is a good initiative. You can find that in schedule 5 of the amendments. The idea of bringing forward the review is something I spoke about in parliament under the last government, when they were merging the courts and getting rid of what I would describe as a specialist, standalone Family Court. I thought that having a Federal Circuit Court and a Family Court was not the way to go initially; that there should have been a standalone Family Court, in accordance with the Lionel Murphy vision. But having a Federal Circuit Court to deal with minor matters and interim hearings, with more complex and difficult cases being dealt with by the Family Court, was still infinitely better than getting rid of the specialist Family Court. We're going to bring that review forward by two years, and that's to be found in schedule 8 of the legislation before the chamber.

I think it's important that we focus on getting rid of the two primary considerations and the 14 additional considerations under section 60CC. The legislation before us lists six matters, which I think is a good focus. They are six matters which are focused on the best interests of children. They are:

(a) what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of:

(i) the child—

which I think is very child focused—and:

(ii) each person who has care of the child …

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

There's a big focus on safety in the provisions, which I think is important. There is also a catch-all phrase:

(f) anything else that is relevant to the particular circumstances of the child.

Good initiatives here are the additional considerations that First Nations children have a right to enjoy Aboriginal or Torres Strait Islander culture and that the notion of kinship and who is a family member, as put in the schedules, is broader than we would see in the non-First-Nations community. I think it is a very good thing to have a broader definition of 'relative of a child' than we have in other areas of the community. The considerations I have outlined, which are in proposed new subsection 60CC(2), and proposed new subsection 60CC(3), which talks about Aboriginal and Torres Strait Islander children, are important improvements and much, much better in relation to the circumstances.

I think there's an understanding also—and you can see it in the legislation here—of the need to get rid of the presumption of equal shared parental responsibility. If parents are separated and there's a child in the care of one parent there's joint parental responsibility. Decisions in relation to what the child wears, what the child eats and the day-to-day parental control type orders—'Go and make your bed. Go and sit up at the table'—are decisions that you make as a parent each and every day in the best interests of the children. Those decisions continue and you don't have to consult the other parent in relation to them. It's the big, long-term decisions—whether the child needs a blood transfusion, what religion the child should adhere to, where the child should go to school—that parents make on a joint basis if there's a court order that says they're to be done jointly.

This is important reform that we're initiating here. It's focused very heavily on the best interests of children. There is some codification of the common law in relation to the ruling in the 1979 case Rice v Asplund, which specified that if there's a final parenting order in place the applicant must show there's been a significant change of circumstance since the making of the order for the order to be reconsidered. That's very child focused. I like the fact that there's a provision in the legislation that deals with that. That rule is founded on the notion, as in the harmful proceedings orders I referred to earlier, that it's not in the best interests of children for there to be continuing litigation over a child or children. It cannot possibly be. My observation, having been an accredited specialist in family law, is that once people get through their initial separation and get focused on the best interests of children they tend to work together in partnership.

There are occasions where there is intractable conflict, and that's sad—it's a tragedy. I know that it's tough on people. I come from a broken home myself. I come from a situation that was hard. I spent nearly 25 years practising in family law and child protection. I know how difficult this can be, particularly in the most difficult child abuse cases that you deal with—in the Magellan List and others.

This is complex, and there are no easy answers in this area, but I think the Attorney-General has got it right. I think the preponderance of the evidence and submissions to various inquiries, including those of the Law Reform Commission and parliamentary committees, supports this legislation. I support the legislation today and I'm pleased to speak on it. I commend the member for Isaacs for bringing this legislation to the chamber.

Kate Chaney (Curtin, Independent) Share this | Link to 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.

Zoe Daniel (Goldstein, Independent) Share this | Link to this | Hansard source

The Family Law Amendment Bill 2023 is of central importance to Australians. It seeks to address problems in an area of everyday life that touches all of us—family and personal life. Families are not safe for many. Just this year the Australian Bureau of Statistics told us that more than one in four women in Australia have experienced violence at the hands of a current or former intimate partner since the age of 15 years. One in four. This is utterly shameful. And it's not just women; one in 14 men told the ABS that they had experienced violence from an intimate partner too.

The problem is far worse for our First Peoples. The past 65,000 years have seen a flourishing intergenerational First Nations family life. We have also seen the terrible impact that colonisation has brought upon Aboriginal and Torres Strait Islander families across our nation. Aboriginal and Torres Strait Islander women are 31 times more likely to be hospitalised for family violence related assaults than non-Indigenous women and 7.6 times more likely to be killed than non-Indigenous women.

Long gone are the days when victims needed to prove mistreatment by showing evidence of physical violence. We now understand that abuse can take the form of subtle coercive control and may involve emotional or financial manipulation, and that these are just as harmful. Separation is often the riskiest time for domestic and family violence. For many, separation does not mean an end to the violence but more harm and more control, especially at contact changeover times for children.

Domestic and family violence is the norm, not the exception, in family law. Recent data from the Lighthouse Project provides undeniable evidence that most parenting disputes before the court involve allegations of family violence. Sixty-four per cent involve allegations of family violence against one parent, and 57 per cent involve allegations of family violence against children. Victims-survivors face a common belief from family law professionals that children need a relationship with their father, no matter the abuse they have suffered or the domestic violence they have witnessed.

Victims-survivors also report that their allegations of family violence are not believed and that their experiences are minimised or trivialised in the family law system. Several women in my electorate of Goldstein have shared with me their distressing stories and concerns about the family law process. One of them said:

The father of my daughter was described by author on gendered violence Jess Hill as 'one of the most terrifying coercive controllers and users of physical and sexual violence that I have practically ever heard of'. Though he's been found guilty of multiple breaches of the Family Violence Intervention Order, and indictable criminal offences following a violent attack on my daughter, keeping her safe from him has been, at times, a seemingly impossible task, despite spending more money than the value of our home in Goldstein on legal advice in order to protect her.

As a victim/survivor of severe family violence, I understand the dire need for family law reform to prioritise the safety of children. I see it as the most poorly understood danger facing Australian children currently.

Our kids are threatened. We now know that exposure to violence at home is as harmful for children as being abused themselves. In short, to describe children as being 'exposed' to family violence is incorrect. They're experiencing it. I have heard mothers tearfully acknowledge that they could not protect their children from witnessing violence after separation.

Across Australia an estimated 2.6 million to 2.7 million people have witnessed violence towards a parent by a partner or experienced abuse before the age of 15. These are distressing numbers. As a nation, we cannot accept this. We must make laws that are carefully designed to support these families, to identify and address the problem of domestic and family violence as early as effectively as possible. This bill is overdue. It responds to longstanding calls for change.

In recent years we've learned a great deal from inquiries such as the Australian Law Reform Commission's 2019 report Family law for the future and the Joint Select Committee on Family Law System 2021-22. The National Plan to End Violence against Women and Children calls for improvements to the family law system, including the need for justice systems to be equipped to provide trauma-informed, culturally safe responses that prioritise the safety of individuals and families. We must listen. Last year, the Wiyi Yani U Thangani First Nations Women's Safety Policy Forum called on the Australian government to 'ensure that First Nations women and children are front and centre of the design and delivery of the proposed separate First Nations national plan to end family violence and violence against women'.

I commend the government on the strengths in this bill. It directly responds to many pressing problems in our family law system and does a great deal for adult and child victims-survivors of domestic and family violence. It removes the presumption of equal shared parental responsibility, and this is key. The current law has created a well-entrenched misunderstanding in the community that both parents are entitled to equal time with their children, regardless of domestic and family violence or abuse. However, in families with a history of abuse this may not be appropriate or safe.

One in five Australians believe that violence is a normal reaction to day-to-day stress, and almost one in three Australians think that women are partly responsible for perpetuating abusive relationships—wow! The removal of this presumption is strongly supported by Women's Legal Services Australia, who have long advocated for its removal. As they explain:

While we recognise that it is often in the best interests of children to spend time with both parents, this must be considered on a case-by-case basis, and the safety of children and adult victims-survivors of domestic, family and sexual violence and abuse must be prioritised.

The removal of this presumption is therefore an enormous step forward in terms of our ability to identify and respond to domestic and family violence.

In response to the evidence received during the public consultation stage, the emphasis on family violence has been strengthened even further. The bill now emphasises the importance of ensuring children's safety when judges or parents are deciding which parenting arrangements would be in the best interests of children and expands the scope of whose safety should be considered to anyone caring for children, rather than just children themselves or those with parental responsibilities. I welcome these efforts to identify the safety of adult and child victims-survivors of family violence as a priority.

However, this bill is not perfect, and I say that in the spirit of collaboration with the Attorney-General's office to support improving it. Drawing on evidence produced by Dr Jessica Mant and Associate Professor Becky Batagol from Monash University, I believe there are currently some gaps in the bill that need to be addressed for it to be truly effective. There is still not a strong enough focus on the problem of domestic and family violence.

Under this bill, there will be six principles to assist judges, lawyers and parents to come to decisions about what arrangements would be in children's best interests. While simplification is to be commended, this should not come at the expense of the safety of those arrangements. Safety is just one of those six principles. If the bill is enacted, there will be nothing in it to suggest that protection from domestic and family violence is any more important than any of the other five principles. The bill must prioritise safety if we're going to address the problem of domestic and family violence in our family law system. In 2011 this parliament passed laws that prioritised the safety of children in parenting matters. These laws were enacted after multiple reports showed that the Family Law Act failed to adequately protect children and other family members from family violence and child abuse. Removing these laws is a step backwards. It is a terrible price we cannot ask more women and children to pay.

The bill relies heavily on the term 'safety' when it talks about domestic and family violence. As Zoe Rathus from Griffith University explains, the word 'safety' conjures images of physical abuse rather than emotional and psychological harm. It does not invite thinking about a range of non-physical abuses common in family law cases. This is a critical gap. The overly simplistic focus on 'safety' here is a subtle shift in language which rolls back on the rich understanding of domestic and family violence we have gained recently. This framing fails to recognise the important realities of past domestic and family violence in the context of future parenting arrangements.

The bill also does not go far enough to address the problem of legal systems abuse. It is only recently that legal systems abuse has come to our attention as a form of domestic and family violence. Research studies undertaken across Australia, New Zealand and the UK all demonstrate how family law proceedings are deliberately used by perpetrators to assert continued control and intimidation over their children, their children's other parent and anyone else who cares for those children. The National Plan to End Violence against Women and Children requires us to address systems abuse.

A major achievement of this bill is that it will introduce a new power for judges to make orders that stop people from bringing court proceedings where it would cause harm to the other family members involved. However, there is nothing in this bill that directly encourages judges to use this new power in cases where they see family violence. These orders can and should be used to secure the safety of children in those situations, and the bill can do even more to address legal systems abuse. Systems abuse should be explicitly listed as a form of family violence in the Family Law Act. A Monash study of legal systems abuse in family law recommended inserting legal systems abuse in the legislative definition of family violence as an example of behaviour that may coerce or control a family member

It's also important that we continue to evaluate the effectiveness of our laws for responding to systems abuse and domestic and family violence more broadly. The bill must allow for research into these issues to make sure that our laws are the best they can possibly be at protecting those affected by family violence. These changes must be addressed if the bill is to be truly effective. I want to commend this government on finally bringing this bill to this place. The government has responded to insistent calls for change on matters that profoundly affect too many Australians each year. It is our job to care about getting our laws right on domestic and family violence, including our family laws, but there is more we can do here today. It is not good enough that, across Australia, about 50 per cent of women who have children in their care, when they experience violence by a current partner, report that their children have seen, heard and experienced that violence. We can do more and we must.

Josh Burns (Macnamara, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Family Law Amendment Bill 2023. The family law system is often criticised in Australia. This is understandable. Relationships are complex, and it's not so surprising that the law governing them is as well. But the pain around relationship breakdown and family separation should not be made more traumatic by the legislation that is put in place to regulate this very difficult time in people's lives. In particular, the government brings forward this legislation recognising that the family law system must be safer, more accessible and simpler to use and deliver justice and fairness for all Australian families. It must promote and facilitate arrangements that align with the fundamental principle that the best interests of children must come first.

There have been numerous reviews of the family law system in the past decade. These inform the way forward, and I am proud that this bill takes the necessary steps to ameliorate the deficiencies that have developed in the family law system. It does so by creating a more child focused framework for making parenting orders, addressing complex and confusing drafting resulting from decades of incremental changes to the Family Law Act, ensuring children's voices are better heard in matters affecting them, responding more appropriately to systems abuse and laying the framework for a scheme to regulate family report writers.

In this contribution I would like to focus on the role the family law system has in preventing domestic and family violence. I will also turn my attention to the rights of the child and the principle of acting in the child's best interest, starting with preventing domestic and family violence. Some relationships break down amicably and others do not. It is devastating when relationship breakdown is accompanied by violence. It is unacceptable when it is accompanied by violence. It is a sad reality concerning family violence that it often presents in family law cases. Yet the current law directs the courts to particular outcomes that marginalise concerns such as child safety and creates requirements that have led to escalated conflict and coercive control. The family law system must play a role in preventing domestic and family violence.

Organisations such as Domestic Violence New South Wales have told us that the safety of women and children needs to be paramount in family law matters. As the peak body in that state, its members represent the diversity of specialist services working to support women, families and communities impacted by domestic and family violence. Their member organisations include crisis and refuge services, specialist women's legal services, transitional accommodation and community housing providers, Aboriginal controlled organisations and specialist culturally and linguistically diverse organisations, men's behaviour change programs and networks, women's and children's support services, women's health centres and safe-at-home programs. When organisations such as this, who hear every day from those at the front line of the responses to domestic and family violence in the community, tell us the law needs to change, we need to listen, and we have.

For example, we know the presumption of equal shared parental responsibility has long been misunderstood, allowing it to be exploited by violent fathers to exert ongoing power, control and abuse. There will no longer be a presumption of equal, shared parental responsibility in Australian family law, as a result of this legislation. This legislation removes the requirement for a court to consider certain time arrangements for children to spend with each parent. Whilst ideally children should feel safe and have meaningful relationships with both parents, we know that this cannot always be the case. Instead, through this bill, there is a recognition and an acknowledgement of the importance of the safety of each person who has responsibility for the child. As those with direct experience tell us, for the best interests of the child to be upheld, the safety of the other parent is paramount, and violence perpetrated against a mother not only is relevant to a child's safety but, we know, increases the risk of violence against a child.

As another organisation that is a national leader in the prevention of violence against women and children Australia, Our Watch, has said:

… the changes increase the focus on prioritising the interests, safety and wellbeing of the child and each person who has parental responsibility for the child, often women. This acknowledges that the safety of a child's carer is an important factor in ensuring the safety of a child.

I further note the reflection that, collectively, many of the changes contained in this legislation have the potential to challenge the condoning of violence against women and cultural norms around such violence. I'm grateful to Domestic Violence New South Wales, Our Watch, Safe and Equal, No to Violence and the hundreds of organisations they work with for their commitment to providing safety to victims and survivors of domestic and family violence.

This bill makes substantial amendments to that aspect of the Family Law Act, part VII, which concerns children. At the moment, part VII contains a confusing combination of principles, objects and factors that substantially complicate the pathway to resolution of parenting matters. Most concerningly, they obscure the capacity of the law to protect the best interests of children in a relationship breakdown. This legislation aims to make it easier to understand the issues to be considered when determining parenting arrangements in the best interests of the child. It does this through clearer objects that elevate the need to consider the best interests of children as the most important factor when determining parenting arrangements. Australia's obligations under the United Nations Convention on the Rights of the Child are also reflected in the new objects clause. Under this bill, six best-interest factors will guide judicial decision-making, including safety, the benefit of having relationships with both parents, any views expressed by the child and the child's development and psychological, emotional and cultural needs. They also recognise the importance for Aboriginal and Torres Strait Islander children to maintain connections with family, community, culture, country and language.

These changes are designed to simplify the complicated existing framework whilst elevating the rights of children. In providing emphasis on the best interests of the child and a child's right to express views, it accords with longstanding advocacy for children to be treated as victims in their own right. It is not right that those most significantly affected by legal decisions have been marginalised in the process, and I am grateful that this legislation seeks to address that. I am grateful for the way in which the Attorney-General, my colleague Mark Dreyfus, has prioritised action to address the deficiencies in the Australian family law system, even in our first year in office. It recognises the decade of reviews and solutions that have been presented but not acted upon. It also recognises that decisions made in family law have deep and long-lasting effects on the lives of parents and children. It is essential that these decisions are made under a legal framework that has principles such as safety, preventing domestic and family violence and the best interests of children at its core. This is a profound and important reform, and I commend the bill to the House.

Zali Steggall (Warringah, Independent) Share this | Link to 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

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to 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.

Michael McCormack (Riverina, National Party, Shadow Minister for International Development and the Pacific) Share this | Link to this | Hansard source

At the outset I want to say there is much of what the member for Moreton has said in his contribution that I agree with. The child's interests must come first. Children are so important. He also made remarks to the effect that these cases are individual and unique and it's never easy. Family law is one of the toughest things that we as parliamentarians deal with, but truly it's one of the toughest things that families have to deal with, particularly at that awful break-up stage—child custodial arrangements and the like. There was much in the member for Moreton's comments that I certainly agree with.

This particular bill, the Family Law Amendment Bill 2023, proposes significant and important changes to the Family Law Act 1975, responding to the inquiry by the Joint Select Committee on Australia's Family Law System, which tabled its final report on 22 November 2021. I acknowledge the member for Moreton's passion in this. I know he's been a long-time advocate for better outcomes in family law. I want to acknowledge too the efforts by former members of parliament, such as the late Alby Schultz, who was the member for Hume before the present member for Hume, Angus Taylor. I acknowledge the work that Mr Schultz did in this regard. His files were significant, and I know that he passed many, if not all, of those files onto the former member for Dawson George Christensen. They were advocates for better outcomes for dads. Sometimes, fathers were the forgotten people when it came to getting justice in family law, and Alby Schultz and George Christensen certainly fought the good fight on behalf of fathers. There are no rights or wrongs when it comes to family law.

I know that my predecessor, Kay Hull, was a champion in this place for better outcomes in family law, for mums, dads and children. She headed an inquiry which reported in December 2003, 20 years ago. It seems a long, long time ago. The report was Every picture tells a story: report on the inquiry into child custody arrangements in the event of family separation. It was produced by the House of Representatives Standing Committee on Family and Community Affairs. She led that inquiry.

I spoke to Mrs Kay Hull AO yesterday about this bill and about the provisions that her inquiry brought about, which were fairer and better arrangements in the event of families separating and parents going their separate ways, and the outcomes of that for children. She commented to me that, prior to the recommendations in that report being adopted, 60 per cent of her work was on child custodial arrangements and family separation. That's a lot of the work of an MP. As we all know in this place, there are long hours in being a member of the House of Representatives, and when you consider that 60 per cent—Kay wasn't exaggerating—was going into these arrangements—and it wasn't just her. It was other members as well, right across the board, right across every seat in Australia. I know the work that Kay went to in trying to achieve better outcomes, and I'll mention that in a short while.

As I said, this bill makes extensive changes to the Family Law Act over nine different schedules. What we, as members of the coalition, would contend is that the bill should be referred to the Legal and Constitutional Affairs Legislation Committee for an inquiry, for further investigation. We want to see the best outcomes, for children in particular.

The most contentious parts of the bill relate to changes to the basis on which courts make parenting orders. In particular, this bill would remove the presumption of equal shared parental responsibility. It was introduced under the Howard government. It was introduced after the tabling of the report Every picture tells a story. Views on this issue are divided. You'll get people who are very hostile in their opposition one way or the other. Labor advocates the complete removal of the presumption; others acknowledge that the presumption needs clarification but believe that its effects should be retained.

It is interesting to note—and Mrs Hull made reference to it in the report—that the member for Dickson, the current Leader of the Opposition, was on that inquiry into child custody arrangements. He would know, being a former policeman, just how difficult it is when it comes to families breaking up and when it comes to custodial arrangements. Sometimes the police have an impossible task when they're called to households to sort out disputes that have not otherwise been sorted out by lawyers, at last resort, or, dare I say, by the parents themselves. Indeed, in the report Every picture tells a storyI'm reading from the foreword—it says:

One of the highlights of committee work for parliamentarians is the people we meet. During this inquiry our greatest delight was hearing from the nine children and five young adults at our final meeting of the inquiry. These children and young adults were a microcosm of what this inquiry was all about.

These 14 young people talked about the important issues of the inquiry—what it was like for them when their parents were separating and how their living arrangements were decided.

Indeed, when we consider what the divorce rate was back then and what is now, we know that it's probably significantly higher now. I'm lucky; I live in a loving relationship with my wife of nearly 37 years, Catherine, and our three children. I'm very, very privileged and lucky to have had such a supportive wife and family. Not everybody has that luck and that privilege.

Kay wrote:

These children and young adults were articulate, open, funny, serious and sometimes sad.

You can imagine that would be the case. She went on:

They told us their stories and as a result the real meaning of this inquiry was clearly understood.

Another young boy, Jack, who we were unable to meet with, told us his story through his four drawings. We are so grateful to Jack for the pictures which we have used on the cover and inside cover of our report. Jack's story is a simple and complex one at the same time. It is a story we can all identify with in some way. Every picture tells a story.

She went on to talk about Jack, and then wrote:

Over the past six months of the inquiry many people have assisted the committee with its work. Over 2000 people have contributed to this inquiry through tasks such as making submissions, appearing at a hearing, making a community statement, facilitating the committee's visits to the courts and mediation centres and providing exhibits.

She said:

As the chairman of the House Family and Community Affairs Committee I always think that every inquiry is the hardest that we have undertaken. However, I can say that this definitely was, and will be the most difficult inquiry any member will ever have to undertake. The committee devoted all of their individual electorate time outside of the parliamentary sittings, to travel to the hearings right across Australia.

It is difficult. There are no right or wrong, black or white, answers, because every case is unique. I know that this inquiry took a terrible personal toll on Kay, because those of us who know Kay Hull know that she puts her heart and soul into everything she does. She was deeply concerned, when we spoke yesterday for a good 25 minutes, about this bill—about what it meant, about whether the provisions of the Every picture tells a story report would be watered down in any way, shape or form. I know that we've moved on, that conditions have changed and that laws can't stay the same forever. And I know that it's been 20 years since this report was handed down. But when you look at the recommendations that Every picture tells a story made, and you know that, of the members on that committee, the only member still in the parliament is the opposition leader, and you look at the various terms of reference for Every picture tells a story, you get a good idea and a good insight into how valuable it was and about how bipartisanship worked not for the sake of bipartisanship but for the sake of children. Surely we are in this place to better the lives of the constituents, the people who elect us, and, most importantly, of their children because, at the end of the day, that's who it should be all about.

As I say, in this bill there is the controversial removal of the presumption of equal shared parenting responsibility. You get many calls as members of parliament—many, many calls—and some of the most devastating calls are from dads who have been denied the right, for various allegations that have been raised or AVOs that were taken out against them—and at the end of the day, it does become a 'he said, she said'. What we don't want to see is the awful toll it takes on them; dads having an even worse time. I note the presumption does not apply when there is abuse or family violence—and nor there should be; that's a given—but many fathers, and some mothers too, are really prejudiced against when it comes to seeing and meeting their children and having fair and equitable access to their kids.

There must be nothing more heart-wrenching or heartbreaking for a parent not to be able to see their offspring, not to be able to see their kids. So many times these particular cases of hardship that are brought to members of parliament are raised at those important times—Christmas and holidays. There are many, many good parents who are denied access to their children for no other reason than that they've had various allegations made against them that, quite frankly, do not stack up. What we don't want to see is parents missing out for the sake of some legislation that overrides a very good report that the former member for Riverina introduced.

The bill also deals with sensitive issues around the enforcement of parenting orders and who is considered a relative in Aboriginal and Torres Strait Islander families.

We know that the handling of this bill is delicate. We understand that. We know that we don't want to see extreme and divisive approaches in this particular legislation or in the debating of this particular bill. That's why we want the bill referred to the Legal and Constitutional Affairs Committee for an inquiry. It would be good to take evidence—perhaps even from people who gave evidence to the Every picture tells a story inquiry 20 years ago. I'm sure Mrs Hull would be available. She is very much a public advocate for the greater good. It would be good to get people with that lived experience, such as her and others, at this point in time, at this juncture, to tell their story, to tell their lived experience, to give the benefit of their wisdom of having seen how that report made such a difference in the lives of families over the past two decades.

This is, as I say, a very difficult piece of legislation; family law always is. We want the very best outcomes for parents—of course, parents come in many different ways and forms these days—and, as I said at the outset and as the member for Moreton also contended, for the children. At the end of the day, they are the ones who are most important, and they deserve the very best outcomes for this particular legislation. I certainly commend that this bill be referred to the Legal and Constitutional Affairs Committee for further investigation and inquiry.

Henry Pike (Bowman, Liberal National Party) Share this | Link to 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.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

I rise to support the Family Law Amendment Bill 2023 because of the crucial changes it makes to the Family Law Act and the focus on the best interests and wellbeing of children. Divorce is an incredibly challenging time for all parties involved, but the safety and wellbeing of children caught in the middle are the utmost priority.

However, I want to flag a concern: that we keep a close eye on the impact of these changes to make sure that they are working towards the end goal of achieving not only safe but also stable parenting arrangements. It is important that we remove the harmful presumption of equal shared parental responsibility, which has been a source of confusion and misinterpretation since its introduction in 2006. It is not okay that victims of family violence, often mothers, are reporting that this presumption has led them to agree to unsafe arrangements for them and for their children. Centring the conversation around the rights of parents conflicts with the primary purpose of the act, which is to protect children.

Still, we shouldn't lose sight of the intent of this presumption, which was to promote the role of both parents in the life of a child. I have heard from parents, particularly fathers, who are concerned that these changes will make it less likely that shared-care arrangements will be granted. Whilst it is essential that no parenting arrangement that would jeopardise the safety of a child could be made, it is also important that we continue to advocate for shared care when it is safe to do so. A 2014 study into shared-care parenting in Australia affirmed that, when family violence is not an issue, shared-time arrangements are better for children. Out of these shared-care arrangements, a fifty-fifty split is often the most durable and stable for a child. Often this comes from the 97 per cent of parents who reach an agreement outside the court system.

However, unfortunately, the three per cent of families that negotiate parenting arrangements through the courts are frequently the ones dealing with family violence. Shared-care arrangement are failing in these families, not because of shared care itself being harmful but because the high-conflict families in court are often the least equipped to manage the intense emotional and logistical requirements of managing shared care. That's why these changes are necessary. They're also a reminder of the systemic issues presenting barriers to stable parenting arrangements.

Whilst I am supportive of these changes today, I also encourage the government to closely watch the research over the next few years to make sure that we are on track to seeing an increase in safe shared-care arrangements. We want to make sure that this option is available to as many families as possible, not because the parents are entitled to it but because of the benefits that come when children have a meaningful relationship with each parent. In 2006, the culture around our perception of parenting roles was completely different. Since then, we have seen a welcome rise in the participation of women in the workforce as well as an increased understanding of the important role that fathers play in the lives of their children. It is my hope that these cultural shifts continue to be reflected in the trends towards more shared-care arrangements made without coercion after this bill.

Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

While I'm not a lawyer, I would suggest any discussion in the area of family law tends to elicit a variety of opinions, heated responses and heightened emotional reactions. There are those that see changes as positive and those that are offended by them. So it is with respect and a commitment to being circumspect that I rise to speak to the Family Law Amendment Bill 2023.

As a mother of three children, and as someone who herself has gone through a divorce, I acknowledge that oftentimes the families who end up at the pointiest end of the process in family courts are those where there has been a fundamental breakdown in a couple's capacity to communicate. Emotions are heightened. No-one chooses or plans to end up in this environment, yet many do. It is with that reality in front of our minds that I think each of us in this place must weigh up the amendments that we see present in this bill.

Having done just that, and having spoken with many across my community, as the member for North Sydney I believe the amendments to family law being proposed through this bill do seek to make the system safer and simpler for separating families to navigate and, importantly, seek to ensure the best interests of the child are placed at its centre. Establishing an enhanced, court-led information-sharing framework relating to family violence, child abuse and neglect, risks and parenting procedures should, if executed well, simplify what can be an overwhelming, toxic and repetitive cycle. Extensive inquiries into the Australian family law system have taken place over recent years, and it is the recommendations of those inquiries that have led to these proposed reforms. For many involved in this process, they have been too long in coming.

Both the Australian Law Reform Commission's 2019 report into the state of Australia's family law system and the 2021 joint select committee inquiry into Australia's family law system highlighted a number of challenges, including extensive court delays, complex and confusing legislation and inadequate protection for people at risk of family violence. While this legislation is focused more broadly on the recommendations relating to the arrangements of separating families and the best interests of the child, I note the inclusion of recommendations specifically focused on improving protections for those who are at risk of family violence through separation, the majority of whom are women and children.

Court data shows family violence was alleged in 80 per cent of matters filed in the Federal Circuit and Family Court during the last financial year. From a broader perspective, with National Domestic Violence Remembrance Day being marked last Wednesday, as a nation we must grapple with the reality that it's estimated that up to 15 women have lost their lives to domestic violence this year alone. The shocking truth is that intimate partner violence is the main cause of illness and death in women aged 18 to 44 in Australia, and women and children in this country have actually never been more vulnerable. Historically, those in this place have let them down.

Recently my team received a call from a woman in North Sydney fleeing family violence with her three young children. Through tears, she shared her story of losing everything because of her partner's coercive control, and she pleaded for help to find affordable housing in North Sydney. She said someone had told her to ring her federal member to see what could be done because surely—and I quote her—'I'm not the only one going through this.' As leaders in this place we have a responsibility to ensure judicial processes work for the most vulnerable of families because ultimately, I believe, many traumatic experiences should be preventable. While there are many areas of urgent unmet need, ultimately the family law system needs to be equipped to better protect women and children who are fleeing dangerous relationships.

To this end, I support the proposed amendments to the family law framework because I believe the changes, including those which cover the factors to be considered when making parenting arrangements in the best interests of the child, will lead to the creation of better parenting orders. Bringing the best interests of the child to the centre of the decision-making is crucial to protecting children and is consistent with Australia's international obligations under article 12 of the United Nations Convention on the Rights of the Child.

Nearly half of all divorces in Australia are couples with children under 18 years. This doesn't include the breakdown of relationships where couples have been cohabitating but not married. The Australian Institute of Family Studies research into child wellbeing after parental separation found children desire the following in the process of family separation: to have their views listened to by their parents when deciding parenting arrangements; to be given an opportunity to participate in decisions about their care and living arrangements; to have their concerns about safety and abuse heard and acted on accordingly; and to be given more information about the family law process, including having access to counsellors, psychologists and support groups.

Ensuring the views of children are appropriately heard and considered in family law proceedings, especially in relation to safety and abuse, will improve the outcomes for children navigating the family law system. Enabling proactive court initiated information sharing and improving the efficiency and effectiveness of information sharing between family law and family violence and child protection systems should strengthen the process as it will enable the family court system and family law decision-makers to have timely access to information to support informed decisions which consider abuse, neglect and family violence risk in a more holistic manner.

The inclusion of standalone best interest factors for Aboriginal and Torres Strait Islander children is also welcome, as is the repeal of the presumption of equal shared parental responsibility and the mandatory consideration of certain time arrangements. By previously emphasising shared parental responsibility and presumption of equal shared parenting, ultimately the rights of the parent were being placed above the rights of the child. In a circumstance where children may be placed in a situation where they are at high risk of violence or abuse, that is simply unacceptable.

These proposed reforms, while overdue, give me hope that societal attitudes are changing and, as a nation, we can start to see better protections for women and children experiencing family and domestic violence. I believe, though, we still have a long way to go to protect vulnerable women and children in Australia, and while the government's response to date has been generally positive, I cannot speak to these amendments without acknowledging the notable shortfalls. To make the family law system safer and simpler, placing the best interests of the child at the centre of family law requires further measures—namely, there remains no definition of coercive control in family law, and this is an issue. Controlling access to finances, monitoring movements and driving isolation from friends and families all are, sadly, common occurrences in those matters that tend to end up in front of the family law court.

In my own electorate of North Sydney the prevalence of coercive control in current family violence cases navigating the judicial system is truly devastating. Proceedings are often intentionally delayed and bogged down in attempts to obstruct the partner's ability to move on, particularly a woman's ability to move on. In this context, this legislation could be vastly improved through the inclusion of an expanded definition of coercive control, one which considers patterns of behaviour over time and provides guidance about responding to competing allegations of violence, with a focus on the person most in need of protection.

In addition to this, on the latter end of court proceedings, physical pathways to facilitate safer movement away from a violent perpetrator are still too difficult. Housing affordability and availability, financial support and ongoing protection mean vulnerable women and children are often having to choose between staying in an unsafe home environment and homelessness. The government's National Plan to Reduce Violence against Women and their Children encourages women to leave violent relationships, but the truth is that current government policies see that as many as half who do leave live in poverty.

The government's commitment to women's safety in the budget is welcome, including measures to address service gaps to support frontline service delivery, a review of emergency accommodation services and their suitability for children and the extension of the escaping violence payment trial. But I urge the government to listen closely to those already working in this space to better understand the complexities and challenges faced by vulnerable people and the relevant services. Crisis and family support services are doing everything in their power to help vulnerable families, but the surge in demand for such services mean crisis centres are overflowing. A centre in my own electorate of North Sydney had to turn away no fewer than eight women in one day, recently. This is exacerbated by the housing and cost-of-living crises.

I support stakeholder calls to develop urgent and practical ways for victims of family violence to physically move away from the perpetrator, particularly in circumstances of highly dangerous and potentially lethal relationships. I believe a large part of this is stronger and more immediate action on the supply of affordable housing, in addition to the measures announced in the budget. But I'd also like to advocate for the specific recognition of family violence in property settlements, to relieve the economic burden on victims of violence and their children. Being driven into poverty for leaving an abusive relationship should be avoidable. Access to any co-owned property assets should be prioritised for vulnerable partners and their children.

I must further highlight the lack of adequate mental health and psychological support for children navigating family separation, exacerbated in the case of family violence. More work needs to be done to publicise mental health services which are available for children in post-separation contexts and to ensure they can access services. Additionally, the mental health workforce needs to be appropriately equipped to provide this support to children and adolescents. I support sector calls that adequate funding be allocated to specialist child and adolescent psychiatrists, including more supervisor positions, and to ensure there are enough specialist psychiatrists to meet the needs of children involved in family law proceedings.

Ultimately, while there have been improvements to the 'best interests of the child' definition, more needs to be done. Developing a standalone safety best-interest principle for children in cases involving family violence would better highlight the risk and safety issues for children and adult victims and would ensure greater protection for children. Inserting recovery in such a best-interest factor would assist the family law system in prioritising the recovery needs of children and non-offending parents, which is consistent with the National Plan to End Violence against Women and Children.

Sadly, all in all the family law system remains chronically under-resourced. Underfunding of the family law system by successive governments over many years has left vulnerable families in crisis. With the rise in the rates of family separation and domestic violence in Australia—and extensive court delays, backlogs and inaccessibility to the court system becoming the norm for many—funding in this area must be increased to match demand. Families in violent situations cannot afford to wait.

In conclusion, while there remains great need to further protect vulnerable families navigating the family law system, particularly women and children facing family violence and abuse, we must start somewhere, and these proposed reforms are just that—a start. Progress in the area of family law has been a long time coming, and I look forward to continuing to work towards a system that delivers justice for families, particularly single mothers and children in vulnerable situations.

Michelle Rowland (Greenway, Australian Labor Party, Minister for Communications) Share this | Link to this | Hansard source

I thank the honourable members for their contribution to the debate on the Family Law Amendment Bill 2023, which represents an important set of reforms to the Family Law Act 1975 and the Federal Circuit and Family Court of Australia Act 2021.

Family law is an important and emotive issue. There are few of us in this chamber who have not been touched by the stresses of family breakdown, either directly through the experiences of those close to us or through hearing the stories of constituents in the electorates which we proudly serve. The Albanese government has committed to ensuring that the family law system is safer, more accessible and simpler to use and delivers justice and fairness for all Australian families. This is a significant task, but successive reviews of the family law system over the last decade have provided us with valuable guidance about where our priorities should lie. In particular, this bill addresses child focused recommendations from the Australian Law Reform Commission's 2019 report Family law for the future: an inquiry into the family law system and reflects the government response to the report of the Joint Select Committee on Australia's Family Law System. The bill is also informed by the views of a wide range of stakeholders, and I thank those who provided submissions to the consultation process earlier this year.

The bill sends a strong message that the best interests of children should be the central concern of the family law system. It provides an opportunity to start addressing the unintended consequences of changes to the Family Law Act made in the mid-2000s. It provides an opportunity to break down barriers to understanding the law which can lead people to agreeing to unsafe outcomes because they think they have no choice, and it enables us to give effect to our commitment to value and listen to children's views in matters affecting them.

Specifically, the bill introduces a safer and simpler framework for making parenting orders by repealing the commonly misunderstood presumption of equal shared parental responsibility and associated requirements for the court to consider specific time arrangements, simplifying the list of factors that are considered in determining the best interests of children in parenting arrangements, and ensuring the court considers the right of Aboriginal or Torres Strait Islander children to maintain their connection to their family, community, culture, country and language. The bill also simplifies provisions for the enforcement of parenting orders to make the consequences of noncompliance clear.

Another key element of this bill is the promotion of children's views in family law matters. This is achieved by requiring independent children's lawyers to meet with children and seek their views and removing the restriction on appointments of independent children's lawyers in matters under the 1980 Hague Convention on Civil Aspects of International Child Abduction.

Other important elements of the bill include ensuring definitions of 'family' and 'relative' reflect Aboriginal and Torres Strait Islander concepts of family and kinship; addressing systems abuse by restraining a party's ability to file harmful applications without first obtaining court approval; clarifying the law which prohibits the public communication of family law proceedings, so critical information can be shared and privacy protected; and creating regulation-making powers to enable government to set standards and requirements for family report writers.

The bill also brings forward the review of the Federal Circuit and Family Court of Australia Act 2021 to assess the merged court structure and ensure it is working to provide families with a safe, accessible and efficient resolution of their family law disputes. The review will now take place in 2024.

These reforms complement the Family Law Amendment (Information Sharing) Bill 2023, which will increase access to vital information from state and territory family violence and child protection systems during family law proceedings.

Throughout this debate we have heard from honourable members a broad consensus that family law issues are amongst the most troubling that their constituents experience. We've also heard some differing views on aspects of the legislation. That is unsurprising. Family law is emotive. There will always be differing views on what should be prioritised for reform. Fortunately, the government has had the benefit of the many inquiries and reports over the past decade that have recommended reform; in particular, the Australian Law Reform Commission's 2019 report Family law for the future: an inquiry into the family law system. Recommendations from that report have informed many of the reforms in this bill.

The Joint Select Committee on Australia's Family Law System in 2021 and the 2017 parliamentary inquiry into a better family law system to support and protect those affected by family violence also made recommendations to improve the family law system. The 2017 parliamentary inquiry was chaired by then Liberal member for Corangamite and now Liberal senator Sarah Henderson. Importantly, one of the recommendations of that parliamentary inquiry was to consider removing the presumption of equal shared parental responsibility.

An exposure draft of this bill was released in January. There were 273 published responses on the Attorney-General's Department website. The Family Law Council response includes some of their insights from the work the council has been undertaking under their terms of reference, including:

For instance, in roundtable discussions with family dispute resolution service providers in Canberra on 29 November 2022, it was the common view of the representatives in attendance that the presumption of the ESPR is misunderstood, even by parties with legal representation. Council was advised that the presumption can cause difficulties in negotiations "including that parties can be fixated on the presumption as an entitlement, even after receiving legal advice". It was further noted "that the best interests of the child are often overshadowed by perceived entitlements as a misunderstanding of the presumption."

Of course, this would not come as a surprise to many professionals who frequent the court, including judges. As the Family Law Council also say in their response:

Problems associated with the application of sections 61DA and 65DAA were identified by judges at an early stage following the implementation of the SP reforms. In a 2007 judgement, Carmody J cautioned about the legislature "trying to entice courts into the dangerous realm of finding a stock standard or 'off the shelf' response to unique and multi-faceted parenting problems".

The Law Council of Australia says about the Family Law Amendment Bill 2023:

The Law Council supports reform to Australia's family law system, including the Family Law Act 1975 (Cth) (Family Law Act), that may facilitate the resolution of parenting disputes and places the best interests, safety and wellbeing of any child to a family law proceeding at the centre of the decision-making process. It makes the observation that many of the proposed changes are intended not only to improve the substantive law but to make it easier to understand for both self-represented litigants and for separating couples who are negotiating their own parenting arrangements without litigation, and likely without the assistance of any family law professional.

Yesterday, Women's Legal Services Australia, representing 13 women's legal services, including two First Nations services, and National Legal Aid, representing the eight state and territory legal aid commissions, released a joint statement in support of the Family Law Amendment Bill 2023. The chair of National Legal Aid, Louise Glanville, says in that statement:

From our work, we see how important it is to consider the best interests of children and the safety of victim-survivors. The changes proposed in the Family Law Amendment Bill appropriately put the best interests of children at the heart of care arrangements for families post separation.

The chair of Women's Legal Services Australia, Elena Rosenman, says:

These changes are long overdue and will significantly improve the family law system's ability to ensure the safety of victim-survivors and children.

The government agrees that these reforms are long overdue.

In conclusion, the needs of every child are unique, and every family's circumstances are unique. We must find a path which meets their needs as effectively and safely as possible. Making the law clearer and more accessible is a critical component of that process. I encourage this House to support this bill and to contribute to securing better outcomes for children through these important legislative reforms. I look forward to these reforms becoming law so that the best interests of children are again the essential focus of the family law system.

Rebekha Sharkie (Mayo, Centre Alliance) Share this | Link to this | Hansard source

I thank the minister. The question is that the bill now be read a second time.

Question unresolved.

As it is necessary to resolve this question to enable further questions to be considered in relation to this bill, in accordance with standing order 195 the bill will be returned to the House for further consideration.