News

10 May 2023

INTRODUCTION  

Thank you Deputy Speaker . I rise to support the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023. These Bills address recommendations made by the Australian Law Reform Commission (ALRC) Final Report  and implements elements of recommendations made by the Joint Select Committee on Australia’s Family Law System. The Bills aim to simplify the framework for determining parenting arrangements and moves to ensure promotion of the best interest of children. 

REASONS TO SUPPORT

In November 2021, I commended to the House the third interim report and the final report tabled by the Joint Select Committee on Australia's Family Law System, of which I was a member.  

I called on the government to actually act on these reports and the two previous reports from the committee. I asked that the government did not let these reports sit on the shelf like so many similar reports from previous inquiries. 

I am therefore pleased that the government is acting to implement some of the recommendations that were made. 

People are incredibly impacted by the breakdown of family relationships, and they are turning to this inquiry for change and they are turning to the government for implementation of the recommendations so they feel that there can be progress in such a distressing area. 

Having been a family law barrister before coming to this place, I have experience of how distressing this area of law can be. It goes to the absolute core of people's lives. Having acted for both sides—for both men and women, for both parties—in property and parenting proceedings, I know it can be so distressing.  

This needs to become a bipartisan issue, and there needs to be a political will to implement these changes. People are incredibly impacted by the breakdown of family relationships, and they are turning to the government for implementation of the recommendations so they feel that there can be progress in such a distressing area. 

The reality is that in modern society, sadly, 40 per cent of marriages end in divorce.  

While many of those separations are conducted fairly and amicably, there are still many Australians who rely on the family law system to settle their divorce or separation and resolve disputes over property and over the custody of children.  

Most of us know someone who has gone through either separation or the family law court. To varying degrees, this process can be adversarial, confrontational, emotionally unsettling, financially crippling and life-changing.  

If there's one thing we can never get back, it's time. It is one of the major problems with the system. For that reason, it's imperative that our family law system not only be functional; it needs to be fair and well funded. It all goes to that question of time—the time it takes for disputes to be resolved or determined. 

The key issues identified in past reviews were:

•  the costs associated with the family law system;  
• the adversarial nature of the family law courts and whether we should move towards a more inquisitorial model;  
• the issue of distressing delays in the current court system; 
• the role of family consultants,  
• expert witnesses and independent children's lawyers;  
• enforcement and contravention of family law orders; and  
• family violence, because in family law proceedings how the family law system and family violence jurisdictions interact is considered. 

This bill has addressed:

• Misunderstandings of the presumption clause to reinforce that the best Interests of the Child are paramount; 
• Codification of Rice v Asplen and codification of Jones v Dunkel;
• Family consultants;
• Independent childrens' lawyers;
• Enforcement;
• Family violence; and
• Merger between the Federal and Family Courts. 

ROOM FOR IMPROVEMENT

My key concern is the codification of the Jones v Dunkel case which seeks to prevent dragging families through a full hearing does not provide the court with sufficient guidance about the sequencing of the consideration of evidence before dragging families back through a full hearing process to determine the validity of reopening orders. 

I am also concerned by the new language inserted in 61CA regarding the parents being “encouraged” to consult with one another on decisions. In situations of family breakdown consultation can be difficult and some qualification needs to be made for this encouragement. I believe parents should be require to demonstrate that they made a reasonable attempt to consult.

Finally, I am concerned that the contravention orders in 70NAC provide a get out of gaol free card in the form of the excuse that a parent “did not understand the orders”. I believe that parents ought to be required to demonstrate that they made a reasonable attempt to understand the orders.  

CONCLUSION

I welcome this Bill and I thank the Attorney General for his constructive engagement on this issue. I understand that further amendments will be considered in the other place addressing the concerns outlined above. Further, I look forward to working with the Attorney General on the implementation of the remaining recommendations of the Australian Law Reform Commission report and the recommendations of the Family Law Inquiry over the remainder of this term to improve the functioning of Family Law in Australia for the benefit of all those who have the unfortunate experience of dealing with this court.