Monday, 11 September 2023
Consideration of Legislation
At the request of Senator Gallagher, I move:
That the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023 may be taken together for their remaining stages.
I rise to speak on the motion that Senator Gallagher has just put before the chamber concerning debate over the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. I say at the outset that, despite our grave reservations about the government's approach to scrutiny of the Family Law Amendment Bill, we will not oppose the motion.
We are happy for the debate on the two bills to run together. Each of these bills is important in its own way, but they address common concerns in our family law system. I say that because family law in Australia is governed by more than just the Family Law Act. In fact, it interacts with child protection systems; laws dealing with domestic and family violence, including criminal laws and apprehended violence order regimes; arrangements that govern property, especially superannuation; and social services, including child support and benefits.
Again, in the context of the motion and the bringing together of two bills, these are incredibly important bills. When you look at the family law system as a whole, it is also governed by intergovernmental agreements and referrals of constitutional power. It is also affected by rules about jurisdiction and appeal pathways, the architecture of our court system and the procedural and administrative arrangements that impact on how quickly matters progress through our courts. We recognise, in addressing the motion, that it is a complex system with a number of parts that are interrelated, and dealing with one part of the system has downstream consequences on the other parts.
Turning to the reasons for dealing with the two bills together, as put forward by the motion, the point of running through an outline of different parts of the family law system is to explain why the coalition will not oppose the motion and we do not mind the fact that the two bills will ultimately be dealt with together. The reason that you deal with them together is that, as I said, you do recognise the complexity and you try and deal with the changes as a whole. We hope that this will help to avoid a piecemeal and ad hoc debate about a system that is already too complex., but it is appropriate to start by reflecting on the broad reach of the family law system for other reasons too. It is appropriate because the complexity of the family law system is exactly the issue that is addressed by the information-sharing bill. That is the subject of this motion, and it is appropriate because the Family Law Amendment Bill will affect Australian families in myriad different ways.
In discussing the motion about how we debate the bills, I want to reflect on the cavalier approach the government has adopted in bringing this bill before the chamber. The Family Law Amendment (Information Sharing) Bill is the culmination of work that started under the former coalition government to ensure that family courts have the information they need when making orders in parenting matters. The coalition has a very strong record when it comes to improving the interaction between child protection and family law systems. In fact, if you look to the 2019-20 budget, we provided funding to co-locate state and territory family safety officials in family law courts. This was intended to improve information-sharing between the family law, family violence and child protection systems. Indeed, after the Australian Law Reform Commission handed down its report, Family law for the future: an inquiry into the family law system (ALRC report 135), the coalition agreed to implement a national information-sharing framework to make sure decision-makers had the right information at the right time.
Again, whilst we are not opposed to these two bills being dealt with together—they go to the complexity of the family law system—the national information-sharing framework that came out of the Australian Law Reform Commission report was intended to guide the sharing of information about the safety, welfare and wellbeing of families and children between the family law, family violence and child protection systems. That work then progressed in partnership with all other jurisdictions through the Standing Council of Attorneys-General and its successor bodies. In fact, that work, undertaken in November 2021 by the former coalition government, led to the endorsement by all jurisdictions of the new framework, and it was called the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems. It had a specific, simple objective:
…to promote the safety and wellbeing of adults and children affected by family violence, child abuse and neglect, and support informed and appropriate decision-making in circumstances where there is, or may be, a risk of family violence, child abuse or neglect.
In fact, one of the features of the national framework was a shift away from subpoenas issued by the parties to a family law dispute.
As we all know, too often in matters of family law, the way that parties put relevant information in front of the court was by issuing a subpoena, and these could be costly, unpredictable and contested. In terms of this motion, when you actually bring the two bills together, the information-sharing bill directly impacts the Family Law Amendment Bill that we will also be debating if this motion is in fact agreed to by the Senate. As I said, one of the issues that is dealt with in this bill, but which is reflective upon the motion for the other bill, is that, too often in family law matters, the way that parties put relevant information in front of the court was by issuing a subpoena, which can be costly, unpredictable and contested. Under the information sharing-framework, the coalition decided to move instead towards targeted requests for information—orders that were initiated by the courts and not the parties to the dispute, rather than relying on those parties to issue subpoenas. The framework was intended to empower the courts. The idea was to allow them to access family safety information. This is actually a good thing in the context of this bill, but it also then has impacts in relation to the motion put forward by Senator Gallagher that we actually now deal with these two bills together.
We had actually looked at facilitating early and streamlined information sharing. We did propose a new form of order referred to as a short form order. This would allow a court to ascertain two things from a state or territory agency that holds information: whether the agency holds information that would help inform the court's decision-making and a general indication about the nature or extent of the records held, any known risks and the extent of the agency's involvement.
In terms of the motion, the government have requested that we consider debating the Family Law Amendment (Information Sharing) Bill in conjunction with the Family Law Amendment Bill. I am very pleased that the considerations that are reflected in this bill are the considerations that the former coalition government had taken on board and indeed would have pursued had we been in government. We would have pursued an information-sharing bill, and that's on the basis that the bill itself will actually achieve four things. Those four things in the context of this debate are important in relation to the discussion that will then be had over the Family Law Amendment Bill 2023.
The information-sharing bill will ultimately impact upon decisions made in terms of the Family Court system itself, and that is what the Family Law Amendment Bill 2023 will deal with. It introduces the two types of information-sharing orders. As I said, it allows the courts to issue the short form order I spoke about earlier, and that is the order for particulars. It also allows the courts to issue orders to actually produce the relevant documents or information. This information-sharing bill, which does then impact on the Family Law Amendment Bill, firstly, replaces the existing more limited information-sharing provisions that are currently in the Family Law Act. Secondly, it allows the family law courts to obtain a broader range of information than is possible under existing information-sharing arrangements. This recognises that family violence and child abuse and neglect are complex, can take a number of different forms and can impact children even if not directed at them. It was always our belief that the Family Court should not be unduly limited by the information they take into account when making parenting orders. Thirdly, the bill expressly outlines legal exclusions to information-sharing, such as documents that are privileged or information that would endanger a person if disclosed. Fourthly, it restricts the issuing of subpoenas without the leave of the court.
I want to make one observation though. As I said, the opposition will support the motion that has been put forward We are happy to have both bills dealt with together, albeit on the basis that the information-sharing bill really implements the work that the coalition had already undertaken and we would have proceeded with had we been in government. Also the motion acknowledges the complexity of the family law system itself.
In terms of the government's approach to family law generally, it has been rather arrogant and cavalier in terms of the Family Law Amendment Bill itself. That bill, which will shortly be joined by the information-sharing bill, epitomises exactly the type of complexity I have referred to. It is far-reaching. It will directly impact Australian families in so many ways. It deals with fundamental principles that the courts apply when making parenting orders; issues about family and domestic violence; procedural rules about family law matters and the enforcement of orders; international child abduction disputes, which are fundamentally affected by rules around jurisdiction and international law; regulatory standards for family report writers; cultural issues affecting Aboriginal and Torres Strait Islander children; the way the family law courts operate across state jurisdictional boundaries; and the structure of the family courts themselves, which the Family Law Amendment (Information Sharing) Bill goes directly to. So again we see the complexity of family law.
The fact that the Family Law Amendment (Information Sharing) Bill is a bill that we as a coalition would have pursued in government again goes to why the coalition is ultimately going to support this motion. We are, then, glad that these bills will be debated together, given the impact that both bills will ultimately have on the family court system itself. It is appropriate, but I have to say it is unfortunate that Labor's arrogance and, in particular, disregard for families and for the Senate committee process in coming to this debate was such that I don't believe adequate integrity was given to, in particular, the Family Law Amendment Bill. But, as I said, because of the complexity of the system and the fact that the coalition itself would have pursued the information bill, we are happy to support the motion that has been put forward before the Senate.
I thank Senator Cash for that contribution. The government moved this motion that the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023 be taken together for the convenience of the Senate. Passage of this motion means that there will be only one second reading debate and committee stage, rather than two consecutive debates on bills dealing with the same topic area. Whilst the Family Law Amendment Bill 2023 has been available to the Senate for some time, the Family Law Amendment Bill 2023 was subject to a Senate committee inquiry, and the government did not consider it desirable for one bill to proceed ahead of the other. The bills being taken together does not prevent any senator from asking for the two bills to be voted on separately at any stage, and there is an expectation that this might occur. If the motion is not successful, the bills will be debated one after the other in the order that they are listed on the red and in the Notice Paper.
I rise to provide support to my colleague Senator Cash in relation to the comments that she made on the two bills. These are very important matters. I sat on the Senator Legal and Constitutional Affairs Legislation Committee, as did Senator Waters, in the inquiry into the provisions of the Family Law Amendment Bill 2023. I also participated in the inquiry into the provisions of the Family Law Amendment (Information Sharing) Bill 2023.
I think the government and, indeed, crossbenchers and everyone in this chamber should reflect upon whether or not there is a pathway by which some reasonable amendments can be made to these bills, particularly the Family Law Amendment Bill. I think there is a pathway where the bill could be enhanced and meet the objectives of the government, and probably everyone in this chamber, in making sure that the best interests and safety of the child are paramount when people are going through the separation processes. This would also send a message to the community.
I went back and had a look at the tremendous report that was prepared on a bipartisan basis by Kay Hull AO when she was in the other place. It was absolutely inspirational to see members across all chambers and all parties come together and propose recommendations that were reflected in the Family Law Act on a unanimous basis, which I think considerably enhanced the legislation and, perhaps most importantly, provided guideposts or signposts to people in the community with respect to our underlying intention as a legislature. What concerns me at the moment in relation to this bill is that there are so many provisions being taken out of this bill, especially in relation to principles and objectives—and I'll be talking about that later—that I think it's sending the wrong message to people in the community. Having read the explanatory memorandum for the Family Law Amendment Bill, I think everyone is largely on the same page. But the drafting of the amendment bill doesn't get there; it doesn't achieve that. And I think it is going to cause disquiet in the community around the messages that are being given through the drafting, which I suspect are not intended by the government.
To those listening to this debate, let me give you just one example. One of the best-interests considerations in terms of the making of parenting orders et cetera is in relation to 'the benefit to the child of being able to have a relationship with the child's parents'. That's non-controversial. Obviously there are safety considerations that need to be considered and there are recommendations that the committee made with respect to the need to consider family violence orders in the past, abuse and neglect in the past, and absolutely those things need to be considered. But many stakeholders raised the issue about 'the benefit to child of being able to have a relationship with the child's parents', as the government proposes. The government has removed the word 'meaningful' from before the word 'relationship'. Why? Why remove that word? So many stakeholders, with the Law Council of Australia at the head of the queue—the experts—and many of the family law practitioners experts are saying, do not remove the word 'meaningful' before 'relationship', because the term 'meaningful relationship' has been the subject of many cases and much deliberation. Practitioners know what it means.
And it's not just about practitioners. Only three per cent of matters dealing with parenting orders actually end up in the court itself; 97 per cent of these matters are resolved by parents and families as they're dealing with the separation issues. We should be doing everything we can in this place to make it easier, not harder, for families to resolve these issues without going through the court process and incurring debilitating legal expenses. We should be making that easier. In order for us to that, there need to be some signposts, some guidance contained in the amending bill with respect to what is intended. This is a perfect example. Why not say 'the benefit to the child of being able to have a meaningful relationship with the child's parents', as opposed to just saying 'being able to have a relationship'? Why take out that word 'meaningful'? What message are you intending?
I don't think you're intending to give any message to people by removing that word. But I think it's an example of where the drafting needs further consideration, when reasonable concerns are raised, not just by Senator Scarr but also by the Law Council of Australia and law practitioners associations across the country, from Western Australia to the Hunter Valley to Queensland, saying, please retain that word 'meaningful'. It is not going to impede the government's reform process with respect to the legislation. I agree with the basis of the reform process. The Family Law Act, in terms of parenting orders, is too complicated. It is acting as a hindrance in relation to dealing with matters, especially on an interim basis. But why change a phrase from 'meaningful relationship' with both parents to just 'relationship'?
So I ask, especially those sitting on the other side of the chamber, to consider these issues. I compliment the Attorney-General's Department on the speed with which they turned around questions on notice et cetera in relation to the matters. We worked very diligently to a very tight timetable. The hearing was on a Friday and then the report was tabled two weeks later—a very tight timetable dealing with very complicated issues. I genuinely believe there is a real opportunity to enhance the drafting of this legislation and get a better result and send the right message to Australian families all over this country.
So I really do commend Senator Cash for her comments and I exhort all of us in this chamber to reflect on how we can improve this legislation, because it's so important. There is nothing more important than dealing with these sorts of issues.
Question agreed to.