11 May 2023
These amendments clarify the intent of the amendments being made by the Family Law Amendment Bill 2023. As we know from many speeches from many members in this House, this is a very difficult and often fraught area of law. It's often the first area in which families have to interact with a system that they don't understand. They feel that it's very expensive, vexatious and very difficult. When parties come to the end of the family law process with an outcome it's important that that outcome stands up and has strength.
Amendment (2) relates to the circumstances in which a party may approach the court to reopen or revisit final orders. It's essentially the codification of the test that was established in the case of Rice v Asplund. This is an area that has been omitted from the bill. This amendment is important to make very clear the timing at which those threshold considerations should be made. It's vastly different for parties whether you're going to have to establish that there has been a significant change in circumstances since the making of final orders at the outset before being put to the expense, effort and anxiety of recontesting a final hearing in relation to parenting orders or whether that can be considered as part of a final hearing. This amendment seeks to make it very clear that the threshold elements of subsection (1) must be considered and determined before the commencement of any hearing of a proceeding to reconsider the final parenting orders.
Another of my amendments is in relation to the making of long-term decisions. The bill has repealed the section in relation to the presumption of shared parental responsibility. With that comes the requirement for both parties who share parental responsibility to make decisions together in relation to long-term issues—traditionally these have been education, health and religion. The bill is encouraging people to consult in the making of those decisions. We know that, by the time parties attend court to resolve a parenting dispute, those parties are generally not communicating well, so this amendment seeks to add the words 'to make a reasonable attempt' in relation to consulting with one another, because I think in these cases it can be incredibly difficult.
My final amendment is in relation to contraventions. I welcome the changes this bill makes to the court's powers in relation to the contravention of orders. It is really frustrating for parties, who have gone to great trouble, emotional toll and expense of obtaining orders, when those orders are then ignored or contravened. It's important that we have a clear system around that. It's also important for people to be aware that the act provides for a defence to a contravention of parenting orders. At the moment there is, basically, a defence to say, 'I don't understand the effect of the orders.' That means a court could say that there is no contravention.
In circumstances where orders are obtained at great cost, at great expense and with great anxiety and emotional toll, I think the amendment I proposed, to insert subclause (aa) is important:
(aa) the person made a reasonable attempt to understand the obligations imposed by the order: and …
I think it's important that the onus is put back on parties, that they make all efforts to understand the effect of the orders. I have met with the Attorney-General in relation to these concerns and raised them, and I understand the bill will be referred to an inquiry. So the important thing for me is that these issues be considered, whether that's in this place or the other place. I think that for people anticipating, or having to go through, the family law system, it's important that we provide as much clarity as possible.
I would like to reiterate, through the minister, to the Attorney-General the importance of potentially amending the explanatory memorandum to be very clear as to the intention of the amendments and the intent of these provisions. That's because this is an area of law where clarity makes a very big difference to people's lives. Thank you.
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