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

by leave—I move:

(1) Schedule 1, item 14, page 7 (line 10), after "encouraged", insert "to make a reasonable attempt".

(2) Schedule 1, item 26, page 10 (after line 15), after subsection 65DAAA(1), insert:

(1A) The matters mentioned in subsection (1) must be considered and determined before the commencement of any hearing of a proceeding to reconsider the final parenting order.

(3) Schedule 1, item 26, page 11 (line 1), omit "subsection (1)", substitute "subsections (1) and (1A)".

(4) Schedule 2, item 21, page 18 (after line 9), after paragraph 70NAD(1)(a), insert:

(aa) the person made a reasonable attempt to understand the obligations imposed by the order; and

These amendments clarify the intent of the amendments being made by the Family Law Amendment Bill 2023. As we know from many speeches from many members in this House, this is a very difficult and often fraught area of law. It's often the first area in which families have to interact with a system that they don't understand. They feel that it's very expensive, vexatious and very difficult. When parties come to the end of the family law process with an outcome it's important that that outcome stands up and has strength.

Amendment (2) relates to the circumstances in which a party may approach the court to reopen or revisit final orders. It's essentially the codification of the test that was established in the case of Rice v Asplund. This is an area that has been omitted from the bill. This amendment is important to make very clear the timing at which those threshold considerations should be made. It's vastly different for parties whether you're going to have to establish that there has been a significant change in circumstances since the making of final orders at the outset before being put to the expense, effort and anxiety of recontesting a final hearing in relation to parenting orders or whether that can be considered as part of a final hearing. This amendment seeks to make it very clear that the threshold elements of subsection (1) must be considered and determined before the commencement of any hearing of a proceeding to reconsider the final parenting orders.

Another of my amendments is in relation to the making of long-term decisions. The bill has repealed the section in relation to the presumption of shared parental responsibility. With that comes the requirement for both parties who share parental responsibility to make decisions together in relation to long-term issues—traditionally these have been education, health and religion. The bill is encouraging people to consult in the making of those decisions. We know that, by the time parties attend court to resolve a parenting dispute, those parties are generally not communicating well, so this amendment seeks to add the words 'to make a reasonable attempt' in relation to consulting with one another, because I think in these cases it can be incredibly difficult.

My final amendment is in relation to contraventions. I welcome the changes this bill makes to the court's powers in relation to the contravention of orders. It is really frustrating for parties, who have gone to great trouble, emotional toll and expense of obtaining orders, when those orders are then ignored or contravened. It's important that we have a clear system around that. It's also important for people to be aware that the act provides for a defence to a contravention of parenting orders. At the moment there is, basically, a defence to say, 'I don't understand the effect of the orders.' That means a court could say that there is no contravention.

In circumstances where orders are obtained at great cost, at great expense and with great anxiety and emotional toll, I think the amendment I proposed, to insert subclause (aa) is important:

(aa) the person made a reasonable attempt to understand the obligations imposed by the order: and …

I think it's important that the onus is put back on parties, that they make all efforts to understand the effect of the orders. I have met with the Attorney-General in relation to these concerns and raised them, and I understand the bill will be referred to an inquiry. So the important thing for me is that these issues be considered, whether that's in this place or the other place. I think that for people anticipating, or having to go through, the family law system, it's important that we provide as much clarity as possible.

I would like to reiterate, through the minister, to the Attorney-General the importance of potentially amending the explanatory memorandum to be very clear as to the intention of the amendments and the intent of these provisions. That's because this is an area of law where clarity makes a very big difference to people's lives. Thank you.

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

I thank the honourable member for her engagement with this bill. As the member has already said, it is expected that this bill will be referred to a committee and so the government won't be supporting these amendments at this time.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendments be disagreed to.

Question agreed to.

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

by leave—I move amendments (1) and (2) as circulated in my name together:

(1) Schedule 1, item 6, page 5 (after line 22), after paragraph 60CC(2)(d), insert:

(da) any family violence involving the child or a member of the child's family;

(db) any family violence order that applies, or has applied, to the child or a member of the child's family;

(2) Schedule 5, page 41 (before line 6), before item 1, insert:

1A At the end of subsection 4AB(2)

Add:

; or (k) repeated and unreasonable commencement of, or participation in, or lack of participation in, legal processes under this Act in a manner that intentionally and maliciously causes emotional or financial harm to the family member.

My first amendment goes to the heart of safety. I believe that including a history of family violence in the Family Law Act will better enable consideration of the impact of violence upon children in determining parenting arrangements after separation. An extra provision should be inserted which states:

(da) any family violence involving the child or a member of the child's family;

(db) any family violence order that applies, or has applied, to the child or a member of the child's family;

Talking about safety is talking about the future, talking about violence is talking about the past and talking about the past is critical to women and children being able to tell their stories when they've experienced domestic or family violence, or abuse. There is a great deal of evidence that says women are often advised by family dispute resolution practitioners and lawyers not to raise their concerns about past family violence in relation to future parenting arrangements for fear it will be held against them. At present, this bill reinforces this problem. It suggests that we should ignore information and evidence about past violence and pretend that it's not relevant to the future safety of the victims-survivors at handovers or the children at the heart of these arrangements.

Bringing up past violence should not be taboo. It's important information that must weigh into decisions about the safety of future parenting arrangements. This amendment will allow judges, lawyers and parents to understand exactly, and share information about, what kinds of arrangements are safe. If this bill is enacted in its current form, there will be nothing in this section to suggest that a history of family violence is in any way pertinent to decisions about where a child should live or who they should spend time with. This provision will also allow full consideration of the impact of family violence upon children and those who care for them.

It is only right that family law should be future-facing. We must consider whether children can or might be able to spend time safely with each parent, but that doesn't mean we should ignore information about the past. Information about family violence is crucial in understanding the recovery needs of those who have experienced violence and how families can function after separation. We must introduce this amendment to ensure that we can truly secure the safety of victims-survivors and children.

My second amendment addresses the problem of legal systems abuse. This amendment will strengthen our response to the endemic problem of legal systems abuse. This bill already introduces a revolutionary new power for judges to be able to stop people from bringing court proceedings where it would cause harm to the other family members involved. This is an enormous step forward in our ability to address the problem of legal systems abuse. However, we need to go further. We need to clearly recognise systems abuse as a form of family violence. This amendment does it clearly and simply by including systems abuse as another example of behaviour that may constitute family violence.

Research studies from 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 child's other parent and anyone else who cares for that child. As the Australian Law Reform Commission told us, systems abuse can look like refusing to sign legal documents, failing to attend meetings or court dates, prolonging litigation to waste the resources of the other party or lodging multiple sets of proceedings. The National Plan to Reduce Violence against Women and their Children requires us to address systems abuse as part of our response to the domestic and family violence that plagues our family law system.

My amendment is evidence backed. Recently, student research from Monash University's Faculty of Law into family law systems abuse concluded that we must rethink legal systems abuse as a form of family violence. That study recommended the amendment we have proposed here. This amendment is a straightforward and overdue solution. It will reinforce the existing strengths of this bill and ensure that they're truly effective in combating domestic and family violence. I strongly urge the government to accept both of my amendments. I accept the Attorney-General's assurance that they will be given due consideration in the committee process in the other place.

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

I thank the honourable member for her engagement with this bill. As the member has said, it is expected that this bill will be referred to a committee, so the government won't be supporting these amendments at this time.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendments be disagreed to.

Question agreed to.

Dai Le (Fowler, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (8), as circulated in my name, together:

(1) Schedule 1, item 1, page 4 (line 6), omit "paragraph 60CC(3)(a)", substitute "paragraphs 60CC(3)(a) and (3A)(a)".

(2) Schedule 1, item 6, page 5 (line 7), at the end of subsection 60CC(1), add:

; and (c) if the child is from a culturally and linguistically diverse background—also consider the matters set out in subsection (3A).

(3) Schedule 1, item 6, page 5 (line 12), omit "other", substitute "any other form of".

(4) Schedule 1, item 6, page 5 (line 20), before "capacity", insert "ability and".

(5) Schedule 1, item 6, page 6 (after line 4), after subsection 60CC(3), insert:

Additional considerations right to enjoy child's culture

(3A) For the purposes of paragraph (1)(c), the court must consider the following matters:

(a) the child's right to enjoy the child's culture, by having the opportunity to connect with, and maintain their connection with, members of their family and with their community, culture, country and language;

(b) the likely impact any proposed parenting order under this Part will have on that right.

(6) Schedule 1, item 6, page 6 (line 9), omit "or (3)", substitute ", (3) or (3A)".

(7) Schedule 1, item 8, page 6 (line 16), omit "and (3)", substitute ", (3) and (3A)".

(8) Schedule 1, page 6 (after line 16), after item 8, insert:

8A Paragraph 63E(3)(b)

Omit "and (3)", substitute ", (3) and (3A)".

The Family Law Act is already convoluted and, arguably, distressing enough for those involved. I hope that in bringing forward amendments our aim is ultimately to simplify the processes that are currently in place and reduce adversarial harm, especially for children. Family law is often a complex space, having to deal with people and parents and children who are hurt, emotionally fraught and struggling to hold things together for their children's sake while going through separation. I would like to make my position clear that my view on this bill is not to be taken as favouring mums or dads. This is not the point of this conversation. Children are at the centre of these amendments.

While there are various proposed amendments, I would like to focus on the changes to section 60CC, which are the factors in determining the child's best interest in considering parenting arrangements. Nearly 14 per cent of my Fowler electorate are reported to have been divorced or separated, which is higher than the national average. Therefore, it's important for me to speak on this bill, in particular for an electorate where more than 50 per cent of our population speaks a language other than English. Proposed subsection 60CC(3) is to be introduced specifically to promote the best interests of Aboriginal and Torres Strait Islander children, including giving them the opportunity to connect with and maintain connection to the child's family community, culture, country and language.

These are factors that I strongly resonate with and wholeheartedly support for our Indigenous children. However, I invite the government to give greater consideration to the best interests of children through a multicultural lens. I represent the multicultural heartland of Australia, and many children in my area grow up with a strong sense of cultural identity. However, children who have separated parents from different cultural backgrounds could miss out on this important part of their development. I believe it is in a child's right to grow up knowing their heritage, whether it be learning the language, attending cultural festivities or volunteering with community groups. The court must recognise this as a critical factor.

My other amendments seek to broaden the definition of 'harm' towards a child when a court considers their safety. It's my hope that redefining it as 'other such forms of harm' encapsulates certain behaviours that are inconspicuous and yet insidious.

Furthermore, amendment (4) will ensure the courts consider both ability and capacity for parents to care for a child, particularly as capacity could be far too broad when assessing the suitability of care for a child. In summary, I believe my amendments will safeguard the child's best interests.

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

Sorry, Member for Fowler. The debate is now interrupted in accordance with standing order 43. It will be resumed at a later hour, and you will be granted leave to continue when the debate is resumed.