Tuesday, 17 October 2023
Family Law Amendment Bill 2023, Family Law Amendment (Information Sharing) Bill 2023; In Committee
I table four supplementary explanatory memoranda relating to the government amendments to be moved to these bills, and I table an addendum to the explanatory memorandum relating to the Family Law Amendment Bill 2023. The addendum responds to matters raised by the Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights.
The coalition will be moving a number of amendments later in the committee stage. In the first instance I have a number of questions in relation to schedule 1, the parenting framework. I'll start with the objects and principles. I commence with the changes to the objects and principles of the parenting framework. As it's currently drafted, the act explicitly sets out just four objects. The first one is ensuring that children have the benefit of both their parents having meaningful involvement in their lives to the maximum extent consistent with the best interests of the child. Minister, why did the government decide that it was no longer necessary to make clear that the object of the parenting framework is to make sure that children have the benefit of both their parents having meaningful involvement in their lives?
Thanks, Senator Cash, for the question. Existing section 60B of the Family Law Act, which contains the objects and principles, of part VII substantially overlaps with section 60CC, the best-interests factors, with a number of inconsistencies in wording. The ALRC found that many stakeholders found this overlap confusing and misunderstood the interaction between the objects and principles in the substantive law, incorrectly assuming that they would directly affect decision-making. Accordingly, recommendation 4 of the ALRC report recommended full repeal of section 60B. The bill repeals the majority of existing section 60B and substitutes the current lengthy and overlapping content with two short objects. This removes duplication and operates as a clear statement of policy intent to assist users to interpret part VII.
I turn now to the other objects. The other objects say that the intent of the parenting framework is to protect children from physical or psychological harm, ensure that they receive adequate and proper parenting and ensure that parents fulfil their duties and meet their responsibilities concerning children. I think, certainly in terms of the feedback I've been given, that those things I have just stated would not be controversial. Why did the government decide to remove those stated objects?
Thanks, Senator Cash. Legislation commonly includes objects provisions to provide context, indicate the legislative purpose and assist users to interpret legislation in line with the parliament's intent. Whilst the ALRC recommended removal of the objects and principles provision, the government considered that simplification would still achieve the aims of the ALRC recommendation by eliminating duplication and confusion about the interaction of section 60B and section 60CC whilst still capturing the primary policy objective of part VII. The simplified objects provision emphasises the consideration of the children's best interests in decision-making, including by ensuring their safety. We're also making clear on the face of the Family Law Act that part VII is to be interpreted in a way that is consistent with Australia's international obligations under the Convention on the Rights of the Child.
In terms of that answer, what I read out both in my first question and in my second question related to the changes to the objects and principles of the parenting framework. I set out what the objects and principles are, as currently drafted, and asked you a number of questions, to which you responded. The changes, however—in the context of talking through this issue with various people—would completely remove what are considered to be the very clear objects of the parenting framework. In effect, what's been done completely removes them—so they're now gone—and then replaces them with a new provision which says that the objects of the parenting framework are 'to ensure that the best interests of children are met, including by ensuring their safety' and to implement the UN Convention on the Rights of the Child.
In describing what our parenting framework tries to achieve, the only things you specifically name are safety and a UN convention. What therefore appears to be lacking—or, should I say, the feedback is that it is lacking—is anything about the benefits of a meaningful parent-child relationship and anything about the responsibilities and benefits of parenting. The issue that then arises is that by replacing those objects your government is sending a very clear message that the object of the parenting framework is no longer to ensure children get the benefit of both of their parents having meaningful involvement in their lives. The message that has been conveyed to me is that, in family law matters, the bill's implementation of a UN convention that most Australians have never read is more important for a child than proper parenting and a meaningful relationship with both parents. In terms of the changed objects, what do you say to the very many Australians who think that those issues I have read out are important and are now missing in the act?
The word 'meaningful' was not included in the best-interests factors recommended by the ALRC. The bill does not include this term, to avoid potential confusion about its meaning. Although case law has attempted to clarify and define what a meaningful relationship means over time—
To give Senator Chisholm an opportunity, I think that's not addressing the particular question that was raised. That's a different issue and it is an issue which will be raised in terms of the use of 'meaningful', but the particular question Senator Cash raised was about the taking out of the objectives and simply having a reference to the UN convention. I just want to give the minister an opportunity to give the right response.
That's not a point of order. That's a contribution. We're in the committee phase, so it's slightly different. The minister can finish his answer. If you have a difficulty with the answer, since it's free-flowing in committee, you can then raise that issue. In normal debate it would have been appropriate.
As I was saying, the bill does not include this term, to avoid potential confusion about its meaning.
In relation to why relevant articles are not listed specifically in the objects clause or why objects and principles that reflect the convention are being removed, it is not necessary to list the relevant articles and the principles behind them in the objects section as these are largely incorporated into the proposed new best-interests factors in section 60CC. They include article 3(1), best interests of the child; article 9(3), relationship with parents; article 12(1) and 12(2), views of the child; article 19(1), protection of the child; and article 30, right to benefit from culture.
And therein lies the issue. These unrepresented litigants are going through what one might describe—it certainly has been described to me and, I'm sure, to others—as a very trying and very distressing time in their lives. They will then make their decisions and be unable to look at material that's buried in explanatory notes, unless, of course, we're now handing out post-it notes here and sticking them there. 'These are the factors that need to be taken into consideration.' I genuinely do not believe they are going to be looking up a United Nations convention.
You have removed something fundamental from the parenting framework. I have to ask again: does the government accept that it's removed something fundamental from the framework? In your own words, most people in litigation are unrepresented litigants. They won't have access to the guidance in the objects and principles. How are they meant to work out what is going to guide them through a very distressing time in their lives and, in particular, through a court system?
What I would point out, Senator Cash, is that the ALRC found the current objects and principles confusing and duplicative. What the government feel we've got right is ensuring that the family law system is safer, is more accessible, is simpler to use and delivers justice and fairness for all Australian families.
Minister, how can it possibly make sense to take out some clearly worded principles and objectives on the importance of a child having a meaningful relationship with both parents and then to incorporate in its totality, by reference, a UN convention which deals with matters relating to parenting and other matters disconnected from those dealt with in the schedule, and say that that actually simplifies the legislation? One of your objectives is incorporating, by reference, an entire UN convention. How could that possibly be construed as simplifying the principles and objectives clause? I recognise, Minister, that you're not responsible for the drafting of this legislation.
Thanks, Senator Scarr, for the compliment there, potentially. As I mentioned in the previous answer to Senator Cash, around the ALRC finding the current objects and principles confusing and duplicative, the government have gone down the process we have with other legislation, which I mentioned earlier, to ensure that the family law system is safer and more accessible. We feel as though we've got that right.
Can I now also follow up that line of questioning—in particular what Senator Scarr put to you. Can we run through, step by step, some of the things that this government is removing from the act? I ask you: do you agree that children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, are separated, have never married or have never lived together?
CHISHOLM (—) (): It's one of the six factors. The amendment addresses stakeholder concern that the new paragraph 60CC(2)(e), referring to the benefit to the child of being able to maintain a relationship with their parents or other significant people, may not capture situations where a relationship with a child has not yet been established—for example, where a parent has not yet had the opportunity to form a relationship due to the age of the child.
With all due respect, we're talking about section 60B, and what I've put forward is not in the objects of the parenting framework. You've already stated, for the record, that the majority of people going through the litigation are going to be unrepresented. For those of you who don't know what unrepresented means, it means I don't have the benefit of legal counsel. It means I'm fronting to the court by myself and I am presenting my case. I may have access to the Family Law Act. I am then expected to go: 'Right, section 60B—let me read that. Oh, gosh, that's what it says.' That's as opposed to flipping it open and reading the objects and principles and having half an idea as to where I might stand, seeing as I don't have the benefit of counsel because I can't afford it and I'm now going to be arguing my case for access myself. Do you agree that children have a right to spend time on a regular basis with and communicate on a regular basis with both of their parents and other people significant to their care, welfare and development, such as grandparents and other relatives?
The parenting framework is simplified so that litigants know what to lead on objects which were misleading. The new paragraph 60CC(2)(e) provides that the court must consider the benefit to a 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.
But not in the objects—is that what you're saying? Okay. In what section are the best-interest factors, for the benefit of those listening in who may find themselves as unrepresented litigants in a family court dispute?
I know Senator Cash has touched on the United Nations Convention on the Rights of the Child. I would like to go over that. As to the legislation: Australia signed, or ratified, the United Nation's Convention on the Rights of the Child in 1990. Article 7 of the convention says:
The child shall … have … as far as possible, the right to know and be cared for by his or her parents.
Article 9 says that signatory nations shall:
… respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
Article 18 says that the signatory nations shall:
… use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.
Minister, can you direct me to anywhere in your bill that states and expresses these words?
But, Minister, why not make it expressly clear in the principles and objectives, rather than force Australian families to have to have recourse to a UN convention and try and find the articles that Senator Hanson referred to? Why not make it express, on the face of the principles and objectives, rather than referring Australian citizens to a UN convention? And good luck trying to find them! How is that simplifying the system? How is that assisting Australian families who may be going through one of most traumatic periods in their life?
Minister, if you say it's in the objectives, basically it's not in the legislation. When a court looks at legislation, that's where they can determine the outcome on behalf of the parents. If this is not reflected in the bill whatsoever, the court has to determine what is in best interests of the child. The fact is that the UN Convention clearly states that the child has a right to a relationship with both parents. That is not clearly defined in the bill whatsoever. Therefore, in the court's decision, they are going to look at: 'What's in the best interests of the child?' It depends on the argument that's put up before the courts, as well. If a lot of parents are representing themselves, they cannot have the advantage of clearly putting across their case to the judge and of expressing their concerns; therefore, a lot of parents are denied the right to see their children. Evidence has also stated that a lot of lies are told in a courtroom, as we have heard from a former judge of the family law courts, David Collier, who said that allegations of child sexual abuse were being increasingly invented by mothers to stop fathers from seeing their children. That's directly from a judge who was in the courts for 14 years. He said:
I'm satisfied that a number of people who have appeared before me have known that it is one of the ways of completely shutting husbands out of the child's life.
I think is important for you to put directly into the bill that the child has a right to see both parents. I want you to explain to me the rights of the child. Please explain to me and the people of Australia your definition of, and where you've put in your bill, the rights of the child or the best interests of the child. What is the definition of 'the best interests of the child'?
The best interests are clearly in the proposed new factors to be considered and also as part of the international obligations in the Convention on the Rights of the Child, which are also referenced in the—
Minister, that's completely the opposite of what we've said is in the UN Convention on the Rights of the Child. You have just said the opposite when you talk about the rights of the child. You referred to the Convention on the Rights of the Child. Under the convention, the child has a right to both parents. Why is the government proposing to take out section 61DA, which provides for fifty-fifty shared parental responsibility?
Proposed section 60CC(2)(e) says the court must consider:
(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.
This will be determined through a lens of whether a relationship is in the best interest of the child on the facts of each case.
I note again, Minister, that you've referred to the best-interests factors and how it just refers to a relationship, and the government is proposing to omit the word 'meaningful'. At the moment, it is a meaningful relationship with both parents, and, for reasons that totally elude me, the government seems determined to take out the word 'meaningful'. Is the minister aware that the Law Council of Australia's submission said:
As it has been the product of considerable jurisprudence—
that means it has been tried and tested in courts—
over the last two decades which is available to guide the Court's consideration of the child's relationship with their parents and other people significant to them, it would be undesirable for the Bill to abandon this concept—
of a meaningful relationship? Elsewhere, the Law Council of Australia's submission said:
… the Law Council's Family Law Section and the majority of its Constituent Bodies—
the Law Council's constituent bodies include the Queensland Law Society, from our home state of Queensland—
have expressed concerns that to remove consideration of a meaningful relationship may lead the court to possibly consider that any relationship may be acceptable, with a consequent reduction in time and communication arrangements as being sufficient to meet that lower threshold.
Why, Minister, is the government hell-bent on introducing a 'lower threshold' for the relationship between children and their parents? Don't all children deserve a meaningful relationship with both parents if that can be managed whilst the safety of children is protected?
Thanks, Senator Scarr. The word 'meaningful' was not included in the best-interests factors recommended by the ALRC. The bill does not include this term, to avoid potential confusion about its meaning. For example, 'meaningful' can be misinterpreted as referring to being meaningful to the parent rather than the child or to mean 'more time' to non-legally-trained users of the Act. Case law has attempted to clarify and define what a meaningful relationship means over time. However, ambiguity and confusion remain, particularly for self-represented litigants or parties who try to reach agreement outside of court. The government's drafting makes it clear that what sort of relationship would benefit the individual child is a question of fact, to be determined by considering the individual circumstances of each case.
We keep referring to unrepresented litigants in the line of questioning pursued by both Senator Hanson and Senator Scarr and in relation to the UN Convention on the Rights of the Child. There will be many parents—and we can imagine them; we have spoken to them, and we may well know them—who are going through a separation and are not legally trained. Like most people, they wouldn't know the first thing about the actual legal framework of family law. If you look at the parenting framework as is now drafted and as is before the Australian Senate, you will see that a court deciding your matter will try to implement the UN Convention on the Rights of the Child. Just for the public's reference—for those who, when this bill does eventually go through, will be operating under these new provisions—where does a member of the public find the UN Convention on the Rights of the Child?
That is just fantastic, Senator Hanson, because people out there have so much time! That is the good news for them. Thank goodness they can find it online! I'm assuming my search term will be 'UN convention on rights of child'. I have so much time, as an unrepresented litigant going through one of the most distressing periods of my life, to google—if I have access to internet and I actually understand that is what I now need to do—'UN convention on the rights of a child'. I thought we were meant to be simplifying the parenting framework. I would have thought a simplified framework would have all of this stated in the objects, not that it would incorporate a reference to a UN treaty. The good news for everybody is: you can google it; it's accessible online. So, in effect, when a person who doesn't have any legal training—let's go with the majority of unrepresented litigants—just wants to find out what a court is going to do when deciding a matter affecting their children, this legislation effectively says: 'Google it. You can find it online.' Is that correct?
The whole purpose of minimising the objects is that litigants are now clear that the best-interests factors should guide their evidence. That's why the best-interests factors also incorporate key elements of the convention.
With all due respect, Minister, you have the relevant staff there, you have people from the department, yet you need to come back to me. What do you expect a member of the public to do? The minister's office, you and the department are unable to answer that question, yet you expect an unrepresented litigant to put in a search term to find a UN convention. You don't know how many articles there are—there are 54—or how many of them are relevant to a parent going through separation. Is there going to be a step-by-step guide put up on the Attorney-General's website, the family law website, that actually says to parents, 'This is what you need to do and this is how you do it,' if the Attorney-General's staff and the Attorney-General's department, who are sitting there advising you, are not able to tell you?
Minister, I'd like to go back to 60CC(2)(a), where it says the court determines the child's best interests. Can you tell me—you haven't really clarified it with me—what is 'the child's best interests'? Where is it throughout the bill? How can the court determine what the child's best interests are?
A lot of the problem these days is false allegations that are being brought before the courts, especially with domestic violence. They are a lot of the allegations put forward before the courts, and a lot of parents on both sides, male and female, are not able to see their children because of domestic violence allegations. How is the court going to determine whether there is truth or not in the allegations put up—whether it is in the best interests of the child?
The fact is domestic violence allegations can be brought up in a family law court where they haven't previously been determined in a court to see if they are false or real—no charge has been laid; they're basically allegations. Do you believe that, when dealing with the custody of children, if there are domestic violence allegations they should be determined in a court prior to being brought before the family law court?
Minister, you didn't answer my question. I said, 'Do you believe that domestic violence allegations should be determined in a court prior to them being brought before the family law court?' Why I persist with this is that, in 90 per cent of hearings in which allegations have been made, the judge found no risk of sexual harm to the child or children. In 25 per cent of these cases the allegations were found to be deliberately misleading, and in another 46 per cent of these cases the allegations were mistaken. In eight per cent of these cases the allegations were not believed by the judge. In 62 per cent of these cases the judge awarded shared or sole parental responsibility to the parent against whom the allegations were made.
Given these facts, we have a big problem with false allegations that have being brought against the other parent in the court system. We have a system which, as your bill clearly states, is going to leave it to the courts to determine how to handle these allegations based on who presents the best case and who has the best lawyer. If these domestic violence allegations are not determined in a court prior to the family law court, how is anyone going to get to the truth of the matter? It is in the best interests of the child that these lies are exposed and dealt with, rather than allowing them to go on, because they lead to a parent being denied the right to see their children. Even if they do get access, they have to wait months—and it costs them hundreds of dollars—to see the children in contact centres. Where in the bill are you dealing with these false allegations and these issues?
Because you don't know and you don't understand, and that's reflected in the bill. You put out a bill that you absolutely rushed through. Looking at the pages and pages of amendments that you've made to your own bill, it's clear to me that you don't know what you're doing. And you didn't listen to the over 1,700 submissions that were put in through the family law system inquiry that I got up. The fact is you are not answering the main issue to do with the family law court, which is the domestic violence allegations, and you have not done anything about dealing with that in the bill. Minister, do you admit that there are false allegations in family violence cases in the family law courts?
If that's something you have disregarded and you're not interested in listening to, then you shouldn't be handling this portfolio, because that is the biggest problem that we have in our family law courts. You say it's in the best interests of the child. It's in the best interests of the child to get to the bottom of why these false allegations and lies are being made against the other parent, stopping them from seeing their child, and it's in the best interests of the child for them to have a connection with both parents and their extended families, grandparents and everyone as well, so you have failed in your duty to protect these children and those people that are being lied about in the court system.
You talk about what's in the best interests of the child. I want to ask you this question. Under your bill, you have here: 'Aboriginal children return to the family based on their connection to their culture'. That absolutely flies in the face of the legislation that states the best interests of the child. You're stating that because they're Aboriginal they must go back to the family. Well, for a lot of these families it's not in the child's best interests to go back to them. Why have you defined Aboriginal children clearly in your bill and not all Australians?
To clarify comments around family violence, the government think that that is a significant factor in family law cases—not false allegations, but family violence is a significant factor in family law matters, and the government is well aware of that. So I disagree with your proclamations in that regard. In regard to this issue of reference to Indigenous children in the legislation, that is based on an ALRC recommendation.
Minister, there are a lot of recommendations made by groups and different organisations, but it's up to the government of the day to actually make the legislation with reference to it. You, here, have clearly treated one Australian totally different to another Australian when you say that the child should go back to the family because they're an Aboriginal, yet you stand here, for an hour or so, stating that it's in the best interests of the child. We clearly know there are a lot of Aboriginal children who are abused, sexually abused and left uncared for, but you say in domestic family law courts that they should go back to the family. Are you really telling me that it is in the best interests of the child to be returned to that family?
I think if you've got specific instances that you're aware of you should refer that to authorities. Obviously, the courts will act in what is the best interests of the children.
The schedule implements recommendation 9 of the Australian Law Reform Commission inquiry into the family law system:
should be amended to provide a definition of member of the family that is inclusive of any Aboriginal and Torres Strait Islander concept of family that is relevant in the particular circumstances of the case.
Unlike similar definitions in state and territory legislation, the definitions of 'relative' and 'member of the family' in the Family Law Act do not currently incorporate Aboriginal and Torres Strait Islander kinship systems and concepts of family. The intent of this amendment is to recognise Aboriginal and Torres Strait Islander concepts of family and kinship, which encompass a wider range of individuals than presently recognised in the act. The amendments reflect the importance of the court recognising Aboriginal and Torres Strait Islander concepts of family when making decisions about Aboriginal and Torres Strait Islander children.
Schedule 3 of the bill therefore expands the definition of member of the family in subsection 4(1AB) by amending the definition of relative of a person in new subsection 4(1AD). New subsection 4(1AD) outlines that for the purpose of paragraph (1AB)(ea) if a person is related to an Aboriginal and Torres Strait Islander child in accordance with the child's Aboriginal and Torres Strait Islander culture, including but not limited to any kinship systems of that culture, the person is a relative of the child. This new amendment includes reference to kinship as requested within recommendation 4 of the Senate Legal and Constitutional Affairs Legislation Committee's report. Schedule 3 of the bill also expands the definition of relative of a child in subsection 4(1) to ensure this is definition is consistent with the amended definition of relative of a person in new subsection 4(1AD).
Could I return to the line of question in relation to the UN Convention on the Rights of the Child. We've established that there are 54 articles. You started to go through how many of them are relevant to a parent going through separation, so I'll get you to expand on that particular answer. Can I also ask you then to elaborate on or to answer which of the articles in the UN Convention on the Rights of the Child does this parenting framework implement?
Article 3.1, best interests of the child; article 9.3, relationship with parents; article 12.1 and 12.2 views of the child; article 19.1 protection of the child; and article 30, right to benefit from culture—they're the best-interests factors that reflect the convention.
In relation to those articles—was it 3.1, 9.3, 12 (I wasn't sure if you said 'point something'), 19.1 and 30?—what guidance is going to be given to unrepresented litigants who are going through the court system that they are the articles that they need to surf through on the internet when all 54 pop up?
With all due respect, Minister, it would appear that even you are confused by the answer, but that is just an observation. The problem that I am getting—and I think Senator Hanson and Senator Scarr are too—is in terms of (a) what the government is doing in relation to removing the objects at this point in time and (b) what you are putting in and what you are incorporating by reference. You've decided the objects of the parenting framework should direct a person—we're going to go with the unrepresented litigant, because someone with a lawyer is going to be paying them a lot of money, and that lawyer is going to be able to say, 'I'm going to go through the UN Convention for you,' but the unrepresented litigant does not have that luxury. But, based on everything I've heard to date, there is no guidance on what that means and what impact it has, because a person needs to actually understand how to interpret the particular articles.
Why you chose to put this in the legislation I no longer know, but to the average person, I would humbly submit, it is fundamentally unclear. The poor person or parent who is having to look at this bill as amended by the government now is going to have to go through some interpretive process relating to an international convention, work out what that means—again, during one of the most stressful periods of their life—and then articulate to the court why they should have access to their children. Can we just go through some of the articles? I'll read out article 5 of the UN convention. I'm hoping this is actually going to help parents. I don't know—they might be able to pick up the committee stage of this bill to work out what they're meant to do. The good news is: the first thing we've established is that you've got to google it. That's a good step in the right direction. This is what article 5 states:
Well, I hope unrepresented litigants know what 'states parties' are—
shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
What guidance do you give to a parent in terms of how they will interpret that when figuring out what a court is going to do in terms of custody of their children?
Again, I'm going to read article 5 for the record, because I'm personally confused by it. I'm not in an emotional state, I'm not going through divorce and I don't have children that I'm wanting to see. So let's go through it again to give guidance to mum and dad who are potentially going to be looking for that guidance. They're onto the UN Convention and they're looking at article 5. It says:
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
Again I ask: how does a parent interpret that?
There will be supporting fact sheets and education materials that will be provided by the department. The Law Council supports many elements of this bill, including the simplification of 60CC, best-interests factors, and the insertion of a standalone best-interests factor for matters involving a First Nations child; the codification of Rice v Asplund in relation to reconsideration of final parenting orders; the proposed simplification of division 13A of part VII and contravention proceedings; the introduction of harmful proceeding orders; and bringing forward the review of the operation of the Federal Circuit and Family Court of Australia divisions 1 and 2 by two years.
Wow, I am even more confused, but anyway. Let's now go to article 17 and see if we can get some guidance, on the record, for people who are having to interpret the UN Convention on the Rights of The child, and that's if they have actually managed to google it, find it, work through the 54 clauses then work through which ones are now relevant to them and the case that they're presenting to the courts. This is what article 17 says:
State parties recognize—
Again, I hope people know what 'state parties' are—'
An opposition senator interjecting—
Exactly—I mean, seriously.
the important function performed by the mass media—
I don't know where this is going.
and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall:
… … …
(c) Encourage the production and dissemination of children's books;
Can I please get some guidance as to what that means in the context of family law proceedings and the parenting framework?
The current objects of the act refer to this convention. We're not removing it or changing it. That is the reality of the situation. As I mentioned, in relation to the relevant articles, the principle behind them in the object section, these are largely incorporated into the proposed best-interest factors at section 60CC. And as I mentioned before in my previous answer, there will be supporting fact sheets and education materials that the department deems relevant.
We will come to section 60CC in due course. What you are removing are all of the other parts that I read out at the commencement of the committee stage; therefore, what is left is a reference to safety and a general reference to a UN convention, and we're working through what the clauses of the UN conventions mean. The good news is, though—and I have taken it from this—for those who are going to be going through this process, isn't it fantastic that there are going to be some fact sheets provided by the department, because you are also going to know that you want to google fact sheets on the Attorney-General's website. Can I ask when will these fact sheets be prepared, or have they been prepared, and are you able to please table a copy of them?
Minister, I noted that you made a reference to the submissions of the Law Society.
I thought you did previously in relation to the objects and principles clause. Excuse me if you didn't. The Law Council of Australia said about the reference to the UN convention being in the principles and objectives:
Why has the government not responded appropriately to the concerns of the Law Council of Australia?
I think we have gone through the position of the government regarding the convention. I do note that it's in the current legislation. And I do note that the opposition have put forward numerous amendments and haven't included one around the convention being removed.
Then I'll refer to section 51(xxii) of our Constitution. It says:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
… … …
(xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;
It basically states in our Constitution that there are parental rights. You've just talked to me about parental responsibility. That is not rights. Do you agree that a parent has a right to have a connection with their child and see them on a regular basis?
With this legislation, you have not taken into consideration the Constitution that we have, which states the parental rights under the section. So you have not done the right thing by the people of Australia in putting that into your bill, because that is clearly what it's about. Yes, I agree—and no-one will argue the fact—about what's in the child's best interest, but parents have been denied the right to see their children based on allegations and lies and what the judge determines. I know one case where six judges denied—actually, no, they didn't deny. They allowed that parent to have access to the child. It was contested, and it took the seventh judge to overturn it. So six judges were wrong, and one was right. The thing is that there are parental rights. Parents have parental rights to have that connection with their children. Where is this reflected in the bill? It's not just about the child's rights. It's also about parents, extended families and grandparents' rights. Do you agree with that—that they have a right to see and have a connection with their children if they are not abusive to that child?
That's a very poor, pathetic answer to me, as far as I'm concerned. You're not answering the question, because you don't even know how to answer it, and it's reflected in your bill. All you've got is the best interests of the child, which goes against the UN convention that we're a signatory to—the declaration. You have actually disregarded the constitutional parental rights. Your whole bill is going to cause more controversy and divisions between families. You're actually going to cause more problems in the family law courts with the bill that you've done here. I want to go to another thing. Do you believe that both parents should have access to all documentation with regard to health and education for the benefit of the child?
If you've got parents where one has the child two weeks at a time and the other one has the child a week at a time, should both parents have access to that documentation—their health records, Medicare card, school documentation and report cards and everything like that?
Well, you answered the question as if you had no children, you have no heart, you have no understanding of what you're talking about. Because all parents have an interest. If the other parent has the child for a week in their care—
I respect the points that Senator Hanson is making, but I also deeply respect Senator Chisholm, and I think if all of us could attempt to ask the relevant questions without making it personal, that might be of assistance.
The TEMPORARY CHAIR: I am just going to make a remark in relation to Senator Scarr's point of order. I am not convinced it was necessarily a point of order under the standing orders, but it was certainly an appropriate reminder to everyone in the chamber to conduct the debate as respectfully as they can.
Thank you, Senator Scarr. I appreciate what you're saying, but the fact is sheer frustration is actually bringing it out of me, because I am not happy with the answers that I'm getting from the minister with regard to the most important piece of legislation that's in this parliament at the moment, that has affected people's lives for decades and the impact that it has had on parents and children and grandparents and extended families. I'm sorry, but I'm getting frustrated at the weak excuses where all he can say is 'the rights of the child.'
The rights of the child are very important, by all means, but when we know what happens in the court system, I think that people are looking for answers. I think our whole family law system is busted. It's done and dusted. The whole thing should be thrown out and redrafted again. It has destroyed so many families. I hear it on a daily basis. I've been associated with this since 1996. I have been dealing with this. I have gone through it personally myself—not the court system that a lot of people have gone through—but I have. I've seen my children go through it. I've seen family members, friends, people who contact me, absolutely broken, destroyed. Suicides have happened because of this, not only with parents but also with children. Children have been murdered because of this, out of sheer frustration from the general public out there who said 'What is happening in that place? Why can't they see what is happening?' These judges are not held to account. No-one seems to be held to account. The lawyers keep a case going purely for the money that they are getting out of it. It has become a money-making business at the cost of people that are actually losing their homes, their lives, their businesses and their families. All we have here is failed legislation. It will continue to fail until you really address the real problems with it.
On top of that now we see organisations and individuals using domestic violence as an excuse to get their way, whether they're vindictive against the other parent or they don't want them to see their children, or they're using it for their own joy. I don't know how they can possibly do it. But that is the problem that we are having. I have letters here. Emails have come through to me all the time. I feel that this has just been buried. It has been the biggest issue that has come across my desk in the time I have been in the parliament. I know that David Leyonhjelm was dealing with it. When he left the parliament he said, 'Go to Senator Hanson. She is the only one who is actually dealing with this.' Because no other members of parliament here, I don't think they take the time to understand or debate it or discuss it or say what the real issues are involved in this, because they are all terrified to mention domestic violence false allegations, because you get howled down by the Greens. You get howled down by the bloody Labor Party. Excuse me. I retract that. You get howled down by the Labor Party.
The fact is that this is happening. You can't continue to bury your head in the sand. We have an opportunity now to make a big difference to this. In the inquiry which had, a joint inquiry with the House of Reps and the senators, there were 10 of us. You know what I found out? There were only three of us in that whole inquiry who had any knowledge of it, who had actually been through it. You might have heard it, but personally going through it to understand what is happening out there—this whole report that was handed down, everyone is side-stepping the whole issue without really going to the guts of the matter, what is happening in our family law courts.
The coalition tried to do something with the merger of the two courts. I fully agreed with that because you have to have more judges dealing with these issues to get the matters heard. That was very important. You had judges sitting there doing nothing—working nine hours a year, if that, or a few days a year. They were just waiting to retire and get their pension. People were waiting for years. Determinations weren't brought down for years. Determinations weren't brought down for that period of time and parents were sitting there waiting. In the meantime the kids grew up.
Parents say, 'I was denied the right to see my child.' When the child catches up with them years later they say: 'Why didn't you fight for me? Why didn't you do something? Why aren't I part of your life?' I met a father and daughter like that. She said: 'The courts denied me the right to see my father. Now that I have grown up and I'm in my late 20s we've actually connected. Now I understand his story. Now I understand he was denied his rights in the courts. They denied him the right to see me.'
Minister, I said to you before that parents are denied the right to see their children because of false allegations. The courts take the stance, 'We better not let that parent near the child just in case there is some truth in the matter.' There may be no former court case and no proof—there's nothing but allegations. They deny the parent the right to see their child. Then they say, 'We'll allow you to see your child, but you're going to have to be in a contact centre.' Guess what? They have to wait at least four to six months—sometimes even longer than that—to even get into a contact centre. On top of that they have to pay hundreds of dollars to the contact centre for them to see their child. Because it has been such a long period of time when it goes back to court years later they say: 'Because you haven't had much connection with your child we must take this very slowly. We're going to let you see the child for only a few hours a night.' This is what's happening in the system. Nothing in your bills really addresses this, Minister. There is nothing at all.
When I spoke about these health issues a father told me: 'I have the child most of the time. I can't even get a Medicare card. When the child gets sick I can't take them to the doctor because the mother won't give me the Medicare card.' If he wants the child's reports from the school to know how well they're doing, the school won't give them to him without the mother's permission. It's alright for the stepfather to get them, but not the actual father. And there had been no form of abuse of that child whatsoever—none. So the parent who has the custody of the child has access to everything and the other parent can't get anything unless they go begging to the mother, and the government department won't give them a Medicare card without the mother's permission. That's what I'm saying to you, Minister. A lot of the parents who have the child are on welfare. They can't afford the $90-plus to see a doctor. They might get the rebate back to help them. Where is their right to have access to the Medicare card for the child? Why isn't that in these bills?
LM (—) (): Thanks, Senator Hanson. I think it would be fair to say that the approaches of the now Labor government and you on these matters have been divergent for a period of time. I do acknowledge that this is something that you have been vocal about for a long period of time, but I think it would be safe to say that the view of the Labor Party in opposition and now in government has been different from yours on these matters.
The one thing I agree with you on is that it is really difficult for the people and families going through these scenarios. They are doing it really tough. I'm fortunate that I haven't gone through it myself, but I certainly know people who have and I have observed how challenging it can be for people. That's why this legislation is about making it simpler for people. That is the objective of the government; that's what we're trying to achieve. That is the legislation before us today.
I rise to place a few things on the record. The Greens are really pleased to be supporting the changes to the Family Law Act that we're debating today, given that they will put children's welfare first in family matters. Overturning the regressive Howard-era changes to the Family Court system is long overdue. The women's safety sector and legal advocates have long called for a child safety focused court, and we are happy that these reforms move our laws closer to that goal. Since the Howard government rewrote Australia's family laws in 2006, we've seen the presumption of shared care weaponised, instead of the best interests of children coming first. We're very pleased to be able to pass amendments to the Family Law Act that are based on expert advice instead of the political grandstanding that's traumatised victims-survivors, put children at risk and provided a platform for hate and misinformation.
Gendered violence is at the core of the vast majority of cases in the family law system, and we know that children frequently bear the brunt of violent relationships and protracted legal matters. While these reforms are welcome, without more funding to courts and frontline family and domestic violence services—including legal services—delays, unequal representation and lack of support will continue to put women and children at risk. The Greens will continue to call for full funding for frontline family and domestic violence support services, including legal services and legal aid. We will also continue to call for comprehensive family and domestic violence education and trauma-informed training for the judiciary, legal practitioners, independent children's lawyers, family report writers, the police and all associated with the court process. If the Attorney-General wants these reforms to work—and we certainly want them to work—the government needs to stump up the funding for them to do so.
In conclusion, my question is: will we see a commitment to increase the funding to the courts both for training and to speed up the processing times for these decisions, and, crucially, will we also see a commitment to increased funding to family and domestic violence support services?
Thanks, Senator Waters, for that contribution and for your support of the bill. In 2023-24, the government will direct $260 million annually to the Family Relationship Services Program. This includes a range of services for separating families and their children, including family relationship centres, family law counselling, family dispute resolution, children's contact services and the Family Relationship Advice Line. We've also provided further support for legal aid commissions. There's also support for two successful family law property programs in the 2023-24 budget, as well as other support that we've provided in increasing funding for family and domestic violence services. That will always remain a priority for the government, and I imagine any further announcements would be made in the budget context.
I will make a comment in relation to the amendments that the coalition has circulated. We have circulated an amendment that leaves the current objects and principles intact. What the Labor Party has done is take these out. They're removing everything in the objects and principles except the reference to safety and the UN convention. Our amendment is to put them back into the act.
I'd just make some comments on the discussion that we've been having on the parenting framework, the objects and principles and what mum-and-dad unrepresented litigants, in particular, are now going to have to go through. The problem with the bill we have before us is that it removes, as I stated, the existing objects and principles and leaves nothing but the reference to safety and a general invitation to look at a UN convention, if you can even work out what that is. The objects clauses make clear to the court that the provisions implement Australia's obligations under international instruments and/or make clear the constitutional basis on which the parenting framework relies. What the minister has outlined in the discussion that we've had about this particular part of the act is exactly the problem. As a matter of principle, we have no issues with implementing international conventions. The issue with the approach that the Labor government has taken in relation to the bill we have before us is this. On the one hand, we have the minister saying that the amendments are for the benefit of people who make decisions about parenting in the shadow of the law. On the other hand, what they are then doing in this bill—and hence our amendment to bring those objects back into the act—is to strip away the guidance that might help those people who so desperately need it.
A parent might find it quite useful to know that, when deciding their case, a court will try to apply the principle that, 'Parents should agree about the future parenting of their children.' Instead, under the bill that we now have before us, all they have is a provision that tells them to go and look for the UN Convention on the Rights of the Child. We've had evidence from the minister that it's online, so they can Google it. We also know that there are 54 articles and they don't all apply. In this case, they then need to work through the 54 articles to work out which ones are going to apply to them. If they can find the convention at all, as I said, they then have to wade through the convention to try and work out which articles are relevant. They then need to figure out whether the bill is referring to the provision which talks about the duties of the parents or the provision that deals with—and I still didn't get an answer in relation to article 17—encouraging the production and dissemination of children's books. I still have absolutely no idea what guidance I'm given in relation to that.
We're going to be faced with a situation, under this bill, where parents need to somehow translate a UN convention, which is an agreement about the obligations of nation states—if parents even know what state parties and nation states are—into guidance on parenting matters. As I said, we don't have a problem with the parliament saying through legislation that it's implementing international commitments. But look at the bill that we have in front of us. As Senator Hanson has said, this is a bill that touches so many people across Australia. It actually literally touches, to put it in plain English, mums and dads in their homes and mums and dads who are out there. It also has an impact on their kids and on critically important issues in peoples' lives, like family violence and the parenting of children.
The point throughout this part of the committee process is this. As to what this bill is now going to do—and we're only onto the objects of the act here, which is the bit that provides parents with the guidance they need going forward—Labor have created a fundamental lack of clarity on the face of the legislation. By removing the type of guidance which actually helps the average person without legal training, you create confusion, you reduce clarity and you create room for legal dispute and delay. Again, I ask the minister: Why did the government do this?
The government did this because we believe that it does simplify. The ALRC found that the current provisions are largely duplicative of the best-interests factor, with inconsistencies in wording between the two provisions. The ALRC also found that many parties to proceedings misunderstood the interaction between the objectives and the principles and the substantive law, incorrectly assuming that provisions would directly affect decision-making. The consultation process on the bill showed that there is little support for the retention of the current objectives and principles in the context of a simplified parenting framework. The simplified objects clause proposed by the government makes a clear statement that the objects of the children section of the act is to ensure that their best interests are met.
I have a few more questions on the objects. I know that other senators may have some questions in relation to this part. Do you agree that parents should agree about the future parenting of their children?
In terms of the answer that you have provided, then, why is it that the only 'right to enjoy culture' that will remain in the Family Law Act, as a result of the changes that are currently before the Senate, is the 'right to enjoy Aboriginal and Torres Strait Islander culture'?
I am actually going to now turn to the best interests of the child, which factors in a meaningful relationship with the child's parents. Again, so I can get it on the record in terms of my line of questioning and the amendments that the coalition will be moving, do you agree that it is in best interests of a child to have a meaningful relationship with both parents where it is safe to do so?
The parenting provisions in the Family Law Act are meant to establish a framework that leads to decisions being made in the best interests of the child. It follows that one of the most important things the act can then do in relation to parenting is set out the factors that determine what is in the best interests of the child. As of now, the act reads as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
As we now know, the changes that the Labor government is pursuing and that are in this piece of legislation entirely remove the reference to a meaningful relationship and they only require a consideration of the benefit of being able to have 'a relationship'. Many have submitted—and I would hope that you can see, in terms of my articulation—the problem. What has again been presented by way of feedback after feedback is that a supervised visit with a child for 30 minutes once a month might well be, to quote what the act will say, 'a relationship', but it could certainly be argued that it's not a meaningful relationship. So, again, why did the government remove reference to the benefits of meaningful relationship with children?
The word 'meaningful' was not included in the best-interests factors recommended by the ALRC. The bill does not include this term to avoid potential confusion about its meaning. For example, 'meaningful' could be misinterpreted as referring to being meaningful to the parent rather than the child or to mean more time or non-legally trained users of the act, which would be contrary to the policy intent. Case law has attempted to clarify and define what a meaningful relationship means over time. However, the concern is that ambiguity and confusion remain, particularly for self-interested litigants or parties who try to reach agreements outside of court. Ambiguity and confusion over the word 'meaningful' was highlighted in the 2017 report A better family law system to support and protect those affected by family violence. Findings from this report included, at 3.12 to 3.16, that stakeholders have indicated 'families are frequently advised not to raise family violence during family law matters' to avoid being seen as an unfriendly parent. In order for children to have a meaningful relationship with both parents, one party is faced with a parenting order that requires contact with the perpetrator—