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.
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.
