Monday, 11 September 2023
Family Law Amendment Bill 2023, Family Law Amendment (Information Sharing) Bill 2023; Second Reading
It was Father's Day the other day. It was a good time to recognise how important dads are for children. It's something I think we sometimes forget. I do think mums are really important too—probably more important—but dads make a big difference in lots of children lives. Certainly, all the statistics show that, for kids who are lucky enough to have their biological father in their lives, it makes a big difference to them. It often makes a big difference to their development and it's something we should try to promote.
I've got grave concerns for the legislation that's before us. It's not really a Father's Day present. The Family Law Amendment Bill 2023 and Family Law Amendment (Information Sharing) Bill 2023, in my view, somewhat unnecessarily and inexplicably seek to minimise the importance of shared parenting, the importance of having both a mother and father in a child's life. I just don't think the government has fully explained here why it is up-ending nearly two decades of bipartisanship here on the principles of shared parenting.
I understand you were in the chamber and you wanted to speak in continuation on item 2 from the business of the Senate orders of the day. The minister stood. I gave the call to the minister. He moved that the question be put, and I followed on with the natural succession from there, so I'm afraid you missed your call. I'm happy to refer the matter to the President for her review. I gave the minister precedence and I certainly didn't see you stand.
The Act Ing Deputy President:
Let me take advice from the clerk in case that changes who I should have called at that time. If you could just give me a moment.
In accordance with the practice of the chamber, we have already moved on to another item. To deal with your question, I will refer it to the President. I've already indicated that. But, just to be clear, my decision was that you did not jump and seek the call. Minister Ayres sought the call, I gave it to him and the question was put. We followed the standing orders in accordance with what I understood to be the proper order and I have taken advice from the Clerk. So I won't take your point of order on a matter which we have already moved on from and I will look forward with interest myself to the President's ruling tomorrow on this particular matter. Senator Scarr?
I respectfully request that you also refer to the President this concept of the chamber having moved on. I moved a point of order previously with respect to a matter which I considered to be disorderly. I didn't consider that I raised the point of order too long after the matter had arisen, but I used a reasonable amount of time to consult the standing orders and then, when I raised the matter as a point of order, I was told the chamber had moved on. So I respectfully request that also be considered as part of your referral—
I'm very happy to refer that to the President, Senator Scarr. I'm sure she will, in concert with the Clerk, come back with some elucidating advice for all of us tomorrow. But I think it's pretty clear where we are up to at the moment. Just for clarity, we are returning to the Family Law Amendment Bill 2023 second reading debate and Senator Canavan has the call.
Thank you. I was talking about how important fathers are to children's lives and that for some inexplicable reason—a reason that I don't think the government has outlined properly—the government is seeking to rip up a couple of decades of bipartisan consensus on the details around parenting orders in the very unfortunate situations where a mother and father do split up.
Those guidelines were designed in the early 2000s through a bipartisan set of recommendations by what I think was a House of Representatives parliamentary committee. It was certainly chaired by Ms Kay Hull, an upstanding member for Riverina and a great contributor to this parliament. She has often been given accolades for the work she did on that report. I think it was titled Every picture tells a story, or something to that effect. As I said, the recommendations of that report were also supported by Labor members of parliament, including Jennie George, Harry Quick and upstanding members of the Labor Party. As a result of that report and those recommendations, the concept of shared parenting was enshrined in our family law. It's very important to say—and I know this bill does seek to deal with some of this issue—that that principle, the shared-parenting principle, did not set in stone that somehow a child must spend, even by default, fifty-fifty time with each parent. It was simply a concept that, as much as possible, there should be an equal amount of parenting involving both parents. That has been misinterpreted sometimes, I realise, by the courts or by parents who are negotiating something before they get to the courts.
In some respects, the intent behind this legislation is admirable in seeking to clarify and simplify some elements of parenting orders which have, at times, generated confusion. As members of parliament, we often receive cases where that degree of confusion causes grave heartache for parents—and children, of course—going through very difficult times in their lives. So I don't object to the government seeking to simplify and clarify matters in regard to our family laws, but I do have grave concerns that, in doing so, they are throwing the baby out with the bathwater here. We have had, as I said, great consensus on that particular matter—about shared parenting. Indeed, in the government's explanatory memorandum they go to great lengths to try to indicate they're not necessarily moving away from that concept. But the concept itself has been removed from the underlying legislation.
It seems very strange to me that such a central concept, one that is well-known to parents around Australia, would be removed from the underlying legislation. There is some suggestion that it might guide decision-making in what are very, very difficult circumstances but then potentially lead to a worse situation. Who knows how the Family Court might interpret this situation going forward? We don't know that for sure. Yes, explanatory memoranda can sometimes be considered by courts in their interpretation of the law, but normally that's in the event where the law is unclear. It's hard for me to understand how the law could be unclear here if the concept of shared parenting is not even in the law that would guide these decisions in the first place.
The points that have been made by some of my colleagues in this debate are well made, and I hope that when we go to the committee stage and consider amendments there can be an open-minded discussion about these points. I very much worry that tinkering around with this system, without due regard to the consequences, could lead to some pretty poor outcomes for many Australian families.
It's very important to note, on this point, the review the government commissioned—I believe it was the previous government that commissioned a review by the Australian Law Reform Commission into these matters—did not recommend removing the shared-parenting concept from the guidelines that would guide parenting orders. It's not really clear to me how the government has come to this conclusion, given it wasn't a recommendation of the ALRC. There have also been many other groups who have remarked on the absence of these guidelines and are seeking to have them put back in. I'm sure the opposition will move some amendments in this space, and I hope the government can give due consideration to them.
There are other aspects of this bill that I and others in the opposition support. It makes sense to facilitate the coordination of information-sharing between agencies, especially where that may help identify risks to the child before a parenting order is put in place. That was a topic of the Law Reform Commission report on what is sometimes the inadequacy of those systems working. In the later schedule of this bill there is a provision for a greater degree of information-sharing, and I support that. I think it's a good step.
I also support the attempt to simplify in this bill. The orders around parenting are included there. There is a need to make sure that there is greater clarity given through some of these changes. The objects of the bill are greatly simplified, sometimes in a way where we lose sight of the importance of putting the best interests of the child at the forefront of these matters. In doing so in some of the detail, there is also the issue of whether or not relying on testimony from children can or should guide orders. Obviously, children in these circumstances can be put in circumstances of duress by one or other parent—or in the worst cases both. We have to be very careful about how much weight we put on children's shoulders. Obviously, they're not at fault in any way or circumstance for the breakdown of a marriage, and whatever the situation, whatever the law, it's going to be a very traumatic experience for them. I really am a bit concerned about making that trauma even greater by potentially putting more emphasis on their testimony to what is in effect a court of law. There is also a concern about the use of independent legal—ILCs involving advocacy for children. We have to be careful about those changes. They play an important role, but some of the changes in the bill may deter lawyers from taking on these roles and therefore restrict the guidance that children and others might have in this situation.
I also think this bill unnecessarily seeks to target the recent merging of courts. It's helped facilitate the conclusion of many family law matters. I think it was a very brave decision of the former Attorney-General, Christian Porter, to pursue the merging of courts. I know a lot of judges weren't too happy about the efficiency measures Mr Porter put in place, but we should run our court system for those who have to appear before it, especially, in this case, families. We should run the court system for the families, not for the interests of the judges.
It seems to me that the current Attorney-General, Mr Dreyfus, is in some way taking the side of the legal fraternity over Australian families. He seems to have a target on the merging of the courts and, through this bill, is seeking to fast-track a review into the changes. I worry what that accelerated review might be seeking to find. Most governments don't ask to do reviews unless they know the answers to them. Maybe the fix is in here on this one. I would say the merging of those courts has led to very good outcomes in terms of the length of disputes and the number of cases backed up. That's despite all the hurdles courts have faced through this COVID era.
So, it would seem to me, as we're now getting some experience out of the restrictions of coronavirus, that we should let this system work for a bit longer and let it work for the previously legislated time frame before conducting a review. We obviously should review these circumstances at an appropriate juncture, but I think the minister might have an ulterior motive in seeking to accelerate the review. Once again, my understanding is that that change to the act was not recommended by the Law Reform Commission, or even others, to my knowledge. It is something that seems to have popped out of the minister's office, given a bent that he seems to have.
But I go back to where I started, about how important it is to get these arrangements right. Obviously we should seek to hope that all marriages can last, and the best circumstances for children is if they can stay in a loving marriage between their biological mother and father. All the evidence suggests the importance of that at an average level. You can always hope for the best, but you do need to plan for the worst, and sometimes, of course, marriages do break down and there needs to be a proper legal framework in place that protects the interests of the child, first and foremost, in that event.
These are always very traumatic experiences for children, and it is best if we never have to rely on the courts and there is a cooperative process whereby arrangements can be worked out. I think we maximise the chances of such cooperation occurring if we have a legal framework that is well understood, that people can see will generate fair outcomes and where there can't be, through the courts—or we deny as much as possible through the court system—any advantage to one side or another, so they're not incentivised to go down a judicial path just to seek some self-interested outcome that may not be consistent with the best interests of the child.
As I said, I'm not trying to stand against the reform of the family law system. Obviously the former government initiated a review in this space. We recognise the need to consider it. We also had a parliamentary inquiry, I think chaired by Senator Hanson, during the last government. So, there is an understanding here on this side of the need for some changes. But, as I said, I just warn that hopefully we do not throw that baby out with the bathwater, that the government, hopefully, in these contributions in the second reading debate and the committee stage, can explain why it's moving from the shared parenting system.
I look forward to some of the amendments that might be brought forward by the opposition here and their discussion around them. As I mentioned, this was a bipartisan change 20 years ago. It would be regrettable if we had to make changes in such a sensitive area in a partisan way. So I hope the goodwill that was there a couple of decades ago can be rediscovered during this debate and that we can possibly come to a situation where all parties can be in support and therefore support all Australian families that must go through these very traumatic circumstances.
I rise this evening to speak on the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. As someone who has had the unfortunate experience of having to go through the family law courts and other areas of family law, this is a very fraught and difficult space to which legislators bring their minds and their experiences. When we look at the impacts of family breakdown across our nation not just on parents, mum and dad, but on grandparents, on the children themselves and the broader community, they are significant. They are long-lasting. In some cases, they are absolutely devastating on young people's development, on their ability to build loving and sustainable relationships into their adulthood and, indeed, on the economic foundation for some of the parents—obviously flowing through to the children.
Unfortunately, tens of thousands of families across this country find themselves, often through no fault of their own, confronted with a bewildering, conflict-driven system of trying to work out arrangements, particularly for the care of children—but increasingly who pays for that care and which parts of it,—and it is a very, very difficult path to navigate, particularly if you are not families of a lot of means. The cost of lawyers and legal advice, the cost of mediation, the cost of having a former partner who would seek to score personal wins by drawing you into a legal debate that could take years to resolve have significant and severe economic, emotional and mental impacts.
It happens everywhere. This is commonplace. We all have a story of a best friend, a family member, who has had a traumatic exposure to the family law system in this country. We need to, not only as legislators but also as individuals and community members, aim for a system that resolves disputes as quickly and as cleanly as possible, with minimum impact on children and, I'd have to say, on the parents' bottom line, because resources of both the father and the mother need to be applied to raising their children and ensuring they have the very, very best start in life. We need to make sure that the children's best interests are always served.
Some measures in these bills, particularly the information-sharing bill, are very welcome to me and coalition senators. But there are issues around some of the proposals being put forward. Many of these changes are moved by good intentions. As we saw, it was 'pocket rocket' Kay Hull, who is now President of the National Party, I might say, the former member for Riverina who, in the Howard government, began the very difficult conversation in communities and with specialists around what changes we needed to make as a nation to the family law system that would better serve children's interests, that would better recognise both parents and that would not assume some of those cultural assumptions, I guess, that we as a country have had in our family law system. That was a good thing.
The coalition's very real concern, though, is that although we join with the government in recognising the problems, many of the solutions presented in the bill remain untested and may make things worse for Australian families. While the economic pressures are being very severely felt by Australian families right now, we don't want to make any harder. When you look at divorce rates, one of the biggest impacts is actually economic pressure. It's not that people don't fancy each other any more, or can't remember why they bothered to fall in love with each other back at the start anyway, or have any less commitment to jointly raising their children—it is the pressures of modern life which often see marriages and partnerships break down, to the detriment of children.
Right now, mortgages have gone through the roof. I think we've seen 11 cumulative interest rate rises, and if there were a couple over six months, families can buffer that, but when you've had one after another after another—many of those fixed mortgages are ending, coming off that mortgage cliff. Families have borrowed and fixed their mortgage for the last couple of years at the incredibly low rate that we saw through COVID, but are now faced with their mortgage payments tripling and quadrupling, with no consequent increase in their earning capacity. In fact, this week we've seen real wages go back to the tune of six per cent. That is the actual reality of what's been played out in our suburbs and our regional capitals. Real wage is the figure that people feel in their back pocket and bank accounts while simultaneously facing energy prices on the rise, food inflation ahead of where it was 12 months ago, and mortgage pressures. That is all playing into a family dynamic that isn't going in the right direction. So we need to have a family law system that puts children's interests first but also we need to make sure that both parents can leave a relationship in a way that allows them to be the very best parent they can be, in both of their capacities.
As legislators, we should be very cautious about making things worse because we haven't tested and really delved into the impacts of some of the solutions presented by this bill. The most significant part of the schedule would repeal most of the factors that courts must consider when determining the best interests of the child, and that list of factors is incredibly long. There are two primary considerations and 14 additional considerations. The list runs to over three pages and almost 900 words. It's very confusing and difficult for parents and courts, and it absolutely should be simplified. Not everybody can afford a King's Counsel to take them to the law courts, and not everybody is eligible for legal aid, particularly in family law matters. While wounds are very real and raw and present in the breakdown of a partnership, it is very easy for either side to run to the lawyers and then inflict cost after cost on the other party. The more complex we make this, and the harder we make it for mum and dad in suburbia to negotiate this legal system, the more we push them into higher individual legal costs, which in the end will impact their joint ability to provide for their children. The simplicity, I think, is underestimated.
When emotions are high, people make decisions that maybe they shouldn't. Maybe, in the fullness of time, after many years, when they settle into a rhythm and pattern of single parenthood but as joint custodians of their fabulous children, they'll wish that they had approached this differently at the very beginning. So I'm very, very concerned that this bill sets up a scenario where we push the aggrieved party or the other into the arms of lawyers, and therefore force both parties into a system which just leads to more costs, more complexity, more anxiety and more stress. None of this, when you get home, makes it any easier for the children they're both trying to care for.
One of the issues requires the court to consider any views expressed by the child. Obviously, in principle, that's absolutely appropriate—that a child should be heard. But any parent who sits in this chamber and doesn't know that a four-year-old, a six-year-old or a two-year-old can be coached by either parent, who they love very, very much and who they trust very, very much, is kidding themselves—absolutely kidding themselves! I think that concern has been raised by the profession and should be listened to. I think back about to how I would get certain of my four fabulous young adults on the bus in the morning, or to put their uniform on or to do things that they didn't want to do. Parents are very, very persuasive influencers of their children's behaviour, as they should be. That's why we've been given the responsibility and the great privilege to parent. But when partnerships break down, and we've all seen it with families and friends, one party or another doesn't always have the best interests of the child at the very core of their behaviour. That's a result of pain, of hurt and of anger et cetera. But to assume that isn't the case is actually neglecting the lived experience of tens of thousands of Australians who've had to go through this particular situation.
It's worth noting the concerns raised by some in the profession that the Labor list risks overlooking a number of other important factors, including the child's maturity or level of understanding. It's much easier to get a two-year-old to put their gumboots on than a 12-year-old and it's much easier to get a three-year-old to eat their broccoli than a 13-year-old! So maturity and developmental capacity have to be part of the court's assessment. Right now, there are serious concerns that it's not.
Has a parent been engaged in parenting in the past, including their obligations to maintain the child financially? Think of the FIFO worker who genuinely loves their child. They're off working incredible hours, far away from family and support, and they haven't necessarily been involved in the day-to-day obligations of raising the child. But they have absolutely been involved in financially supporting the child. How do you reconcile both of those different roles? Then there's the likely impact on a child of a change in circumstances; we can't foresee that. So there are still many, many questions for this bill and for us to actually seek to obtain a greater level of understanding from the experts—from those who are delegated to act on behalf of children, like child psychologists. That's the level of evidentiary fact that we need to take into account when we consider this bill, because we do need a legal system and a family law framework that works for parents and for children and which means that the next generation of Australians will get all the support they need, despite a family breakdown, to be the very best humans they can be as adults.
I too rise to speak on the Family Law Amendment Bill and the Family Law Amendment (Information Sharing) Bill, which are two very important pieces of legislation because, undeniably, family breakdown needs to be managed with the utmost sensitivity. Family law has an extraordinary and direct impact on the Australian community and on the families that seek the support and services of the law in order to settle disputes that are seemingly often unresolvable, so it needs to be a system that is designed in a way that gives Australians who rely on it some of the support they need as they navigate what is probably one of the most difficult times in their lives. We know, sadly, no matter the best of intentions, tens of thousands of Australians will find themselves in need of the support of the family law system as they go through the distress, pain and sadness of separation. Luckily, only a small proportion of those cases, disputes, will be decided by a judge in the family law courts. As a nation, we must aim for a system that resolves those disputes as quickly, as cleanly and as fairly as possible. Children, clearly, are involved, so we should prioritise the interests of the children as we work our way through.
The Family Law Amendment Bill and the Family Law Amendment (Information Sharing) Bill contain measures that the coalition unquestionably supports wholeheartedly, most particularly the provisions that are contained in the information-sharing bill. There are a number of areas that the measures in the Family Law Amendment Bill seek to address, but we are really concerned that the proposed solutions either go too far or have not been appropriately tested. There is no doubt that the changes contained in this bill have been put forward with the very best of intentions. We join with the government in recognising that these bills do seek to address a number of problems that clearly do need a solution. But in too many places, the proposals that have been put forward by this bill we as a coalition don't believe align with the problems that they are seeking to solve. They go beyond the recommendations we've seen in previous reviews. They are not all necessarily supported by the profession. Unintended consequences have been highlighted through the process or they have not been road tested in communities and on the ground to make sure that the people who will be directly impacted by the changes contained in these bills have been properly consulted. Because at the end of the day, a policy that is made without the people it impacts in the room where the policy is being developed will be a policy that will not be as good as policy that is designed with the people in the room.
So, although we recognise the problems, the coalition has real concerns that some of the measures put forward by the government through these bills will actually make things worse for Australian families. In all conscience, we cannot say in this place we are doing our jobs as legislators and regulators if what we put forward is actually making a situation worse. So we need to be very, very cautious as we move forward with these bills to make sure we are not doing something that, without necessarily intending to but because it has not been road tested and because it has not been consulted properly, actually makes things go worse. But it is particularly worrying, because it is becoming a bit of a track record of those opposite, that we see pieces of legislation put into this place that sound good on the surface but, when you start scratching the surface, you realise that they are not quite as good as they may sound.
We've seen so many times that the announcement that grabs the headline in the paper is the thing that this government is trying to secure. They have not done their homework. They have not done the hard yards. They have not done the consultation to determine what the actual consequences of this legislation or these policies are for the people who are impacted by them. Because they don't do their homework, because they don't attend to the detail, we start to see things unravelling. We've seen it time and time again with policies that have come into this place, and it concerns me, when we're talking about a policy area as important and as sensitive as when we're dealing with the Family Law Act, that once again we've seen legislation brought forward that has not been properly considered and that the flow-on impacts of some of the changes have not been mitigated in any way.
So this is something that, clearly, the coalition is particularly concerned about, and we'll be very keen to continue to prosecute this to make sure that the government actually understands that there are some significant concerns. We really hope that, in the interests of making sure that we protect Australians who need this really important service, the government will actually consider any amendments that are put forward that seek to make this bill better and not be belligerent and bloody-minded and just try and force the bill through as it is. Equally, I would hope that those at the other end of the table, the Independents and the Greens, would like to try to make sure that the Family Law Amendment Bill 2023 is as good as it possibly can be because of the importance of this for Australians who are probably going through some of their darkest hours as they have to sort out a marriage break-up where children are involved.
In looking at the schedules that are contained in this bill, we see that schedule 1 would repeal most of the factors that the court must consider when determining the best interests of a child. I don't think that anybody in this place would dare to stand up and say that, when it comes to family breakdown and the resolution of that breakdown, the interests of the child should not be absolutely paramount in any decision-making, and we understand why the government has sought to address this. The list of factors is just way too long. It runs over three pages and almost 900 words. It's confusing and difficult for parents and courts, and it should be simplified. But there are some real concerns about the simplified list of considerations that has been proposed by this bill, because the list that Labor has put forward requires only that the court consider the benefit of a child being able to have a relationship with the child's parents and other people who are significant to the child where it's safe to do so. The list does not say anything about the relationship having to be meaningful.
I would have thought that a meaningful relationship is absolutely what we should be seeking to ensure. Omitting the word 'meaningful', albeit just one word, makes a really significant and substantial change to the meaning of what the court needs to undertake when determining the best interests of the child and in relation to the relationship that the child has with their parents. It sends a really significant signal to the court about the type of relationship that is important and the interests of the child. We are very concerned about the signal that the removal of the word 'meaningful' sends about the quality of the relationship that is being sought for the child to have with their family. For example, a supervised visit once a month may well be a relationship, but it may not necessarily be a meaningful relationship. Bodies like the Law Council of Australia have expressly raised this as an issue which should be corrected. So we are very keen to point out that this oversight in the legislation that the Albanese Labor government is seeking to bring into this place now must be rectified.
Labor's simplified list also requires the court to consider what arrangements would promote the safety of the child and each person who has care of the child. But, astoundingly, Labor's list does not require the court to consider existing family violence orders and the basis on which they were made. This is an issue that we in the coalition raised time and time again during the committee process. The failure to include family violence orders in these changes just adds weight to our concerns.