Family Law Amendment Bill
I rise to speak on the Family Law Amendment Bill 2023.
Family law – and the family law system – is often criticised in Australia.
This is understandable.
Relationships are complex, and so it is not surprising that the law governing them is as well.
But the pain around relationship breakdown and family separation should not be made more traumatic by the legislation that is put in place to regulate this very difficult time in people’s lives.
In particular, the government brings forward this legislation recognising that the family law system must be safer, more accessible, simpler to use, and delivers justice and fairness for all Australian families.
It must promote and facilitate arrangements that align with the fundamental principle: the best interests of children must come first.
There have been numerous reviews of the family law system in the past decade.
These inform the way forward.
I am delighted this bill takes necessary steps to ameliorate the deficiencies that have developed in the family law system.
It does so by:
In this contribution, I would like to focus on the role the family law system has in preventing domestic and family violence.
I will also turn my attention to the rights of the child and the principle of acting in the child’s best interest.
Preventing domestic and family violence
Some relationships break down amicably.
Others do not.
It is devastating when relationship breakdown is accompanied by violence.
It is a sad reality that concerns about family violence are often present in family law cases.
Yet the current law directs the courts to particular outcomes that marginalises concerns such as child safety and creates requirements that have led to escalated conflict and coercive control.
The family law system must play a role in preventing domestic and family violence.
Organisations such as Domestic Violence New South Wales have told us that the safety of women and children needs to be paramount in family law matters.
As the peak body in that state, its members represent the diversity of specialist services working to support women, families and communities impacted by domestic and family violence.
Their member organisations include crisis and refuge services, specialist women’s legal support services, transitional accommodation and community housing providers, Aboriginal controlled organisations and specialist culturally and linguistically diverse organisations, men’s behaviour change programs and networks, women and children’s support services, women’s health centres and Safe at Home programs.
When organisations such as this – who hear every day from those at the frontline of the response to domestic and family violence in the community – tell us the law needs to change, we should listen.
And we have.
For example, we know that the presumption of equal shared parental responsibility has long been misunderstood, allowing it to be exploited by violent fathers to exert ongoing power, control, and abuse.
There will no longer be a presumption of equal shared parental responsibility in Australian family law as a result of this legislation.
This legislation removes the requirement for a court to consider certain time arrangements for children to spend with each parent.
Whilst ideally children should safe and have meaningful relationships with both parents, we know this cannot always be the case.
Instead, through this bill there is recognition and acknowledgment of the importance of safety for each person who has parental responsibility for the child.
As those with direct experience tell us, for the best interests of the child to be upheld, the safety of the other parent is paramount, and violence perpetrated against a mother is not only relevant to a child’s safety but increases the risk of violence against the child.
As another organisation that is a national leader in the primary prevention of violence against women and their children in Australia, Our Watch, has said:
“The changes increase the focus on prioritising the interests, safety and wellbeing of the child and each person who has parental responsibility for the child, often women. This acknowledges that the safety of a child’s carer is an important factor in ensuring the safety of a child.”
I further note the reflection that collectively, many of the changes contained in this legislation have the potential to challenge the condoning of violence against women and to cultural norms around such violence.
I am grateful to Domestic Violence New South Wales, Our Watch, Safe and Equal, No to Violence and the hundreds of organisations they work with for their commitment to providing safety to victims and survivors of domestic and family violence.
Rights of the child
This bill makes substantial amendments to that aspect of the Family Law Act, part seven, which concerns children.
At the moment, part seven contains a confusing combination of principles, objects and factors that substantially complicate the pathway to resolution of parenting matters.
Most concerningly, they obscure the capacity of the law to protect the best interests of children in a relationship breakdown.
This legislation aims to make it easier to understand the issues to be considered when determining parenting arrangements in the best interests of the child.
It does this through clearer objects that elevate the need to consider the best interests of children as the most important factor when determining parenting arrangements.
Australia's obligations under the United Nations Convention on the Rights of the Child are also reflected in the new objects clause.
Under this bill, six 'best interests' factors will guide judicial decision-making, including:
They also recognise the additional importance for Aboriginal and Torres Strait Islander children to maintain connection with family, community, culture, country and language.
These changes are designed to simplify the complicated existing framework whilst elevating the rights of children.
In providing emphasis on the best interests of the child and a child’s right to express views, it accords with long-standing advocacy for children to be treated as victims in their own right.
It is not right that those most significantly affected by legal decisions have been marginalised in the process, and I am grateful that this legislation seeks to address that.
I am grateful for the way in which the Attorney-General, my colleague Mr Dreyfus, has prioritised action to address the deficiencies in Australia’s family law system in this government’s first year in office.
It recognises the decade of reviews and solutions that have been presented, but not acted upon.
It also recognises that decisions made in family law have deep and long-lasting effects on the lives of parents and children.
It is essential that these decisions are made under a legal framework that has principles such as safety, preventing domestic and family violence and the best interests of children at its core.
I commend the Bill to the House.
05 May 2023