Extract from Hansard [ASSEMBLY — Thursday, 19 September 2024]

p4847b-4851a Mr John Quigley

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FAMILY COURT AMENDMENT (COMMONWEALTH REFORMS) BILL 2024 Introduction and First Reading

Bill introduced, on motion by Mr J.R. Quigley (Attorney General), and read a first time. Explanatory memorandum presented by the Attorney General.

Second Reading MR J.R. QUIGLEY (Butler — Attorney General) [10.46 am]: I move —

That the bill be now read a second time. On 19 October 2023, the commonwealth Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023 passed both houses of federal Parliament, amending the commonwealth Family Law Act 1975. The acts worked together to create a family law system that better meets the needs of its users, with paramount consideration given to the voices and best interests of children to ensure their safety and wellbeing. The acts also simplified drafting complexities resulting from decades of incremental change to the commonwealth act. For ease of reference, I will refer to these commonwealth acts as the commonwealth 2023 reform package. The commonwealth act applies to married or formerly married couples in Western Australia, and the Western Australian Family Court Act 1997 governs family law matters for unmarried or de facto couples. The Family Court of Western Australia currently applies the commonwealth act, as amended by the commonwealth reform package, for married or formerly married couples and their children; and the WA act, without these amendments, for unmarried couples and their children. For this reason, it is essential that we amend the WA act as soon as possible to ensure that all children in Western Australia will receive the same benefits of the child-focused amendments in the commonwealth reform package.

For too long, the commonwealth act and, by extension, our own WA act have been a source of confusion. They have inhibited the ability of separated families to put into practice post-separation parenting arrangements that align with this most important principle: that the best interests of the children must come first. The government is of the firm view that ensuring the safety and wellbeing of children and their families is a priority. This includes their safety within the family law system. In mirroring the commonwealth 2023 reform package, this bill will take some critically important steps to create a more child-focused framework, make the law more user-friendly for self-represented parties, ensure that children’s voices are better heard in matters affecting them, respond more appropriately to systems abuse and establish a scheme to regulate family report writers. The government is committed to ensuring the family law system is safer, more accessible and simpler to use, and that children and families do not fall between the gaps of the family law, family violence and child protection systems. The reforms have not been developed in isolation. Of the many reviews of the family law system conducted in the last decade, these reforms have the benefit of insightful and informed recommendations made by both the Australian Law Reform Commission’s 2019 report Family law for the future—An inquiry into the family law system and the 2021 recommendations of the Joint Select Committee on Australia’s Family Law System.

Due to the length and complexity of the bill, I will now take the house through its key reforms.

Changing the framework for making parenting orders: The bill will make significant changes to part 5 of the WA Family Court Act, which relates to children. Parenting arrangements after a separation are often negotiated as parents struggle with loss, grief and financial stress at the end of a relationship. Despite these challenges, most separated Australian couples are able to settle their own arrangements outside of the family law system and co-parent successfully. Research by the Australian Institute of Family Studies has found that only three per cent of separating families have their parenting arrangements determined by a court. The parenting provisions in the commonwealth act, and by extension the WA act, must therefore serve as a guide to those negotiating their own arrangements as well as to judicial decision-makers.

The complex interaction between part 5’s multiple objects, principles and factors is confusing. Convoluted and complex decision-making pathways that must be navigated through an understanding of legislation and case law add significantly to the time and cost of any parenting matter. In recognition of this, the bill will make a number of amendments to make it easier to understand the issues to be considered when determining parenting arrangements in the best interests of the child. The existing objects and principles in section 66, under part 5, are often misunderstood to be legally binding, and contain significant overlap with the “best interests” factors contained in section 66C. The bill will replace the existing objects with a much shorter objects clause to make it clear that children’s best interests are the most important consideration in making decisions about parenting arrangements, including their safety. Australia’s obligations under the United Nations Convention on the Rights of the Child are also reflected in the new objects clause.

Extract from Hansard [ASSEMBLY — Thursday, 19 September 2024]

p4847b-4851a Mr John Quigley

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The bill will streamline the complex list of factors to be considered when determining the best interests of a child. The changes mean the court will now simply consider six “best interests” factors to decide the best parenting arrangements for each child. The factors include the child’s safety, the benefit of having relationships with both parents, any views expressed by the child and the child’s developmental, psychological, emotional and cultural needs. These six factors are complemented by an additional specific consideration of opportunities for Aboriginal and Torres Strait Islander children to maintain a connection with family, community, culture, country and language. The bill will also codify existing case law about the reconsideration of parenting orders, making it clear that it must be in the best interests of the child and that a significant change in circumstances must have occurred for an existing parenting order to be reconsidered.

Repealing the presumption of equal shared parental responsibility: The government recognises that it is strongly in the best interests of most children to have a loving and nurturing relationship with parents after separation. The simplified list of interest factors includes consideration of the benefits to children of having a relationship with each of their parents when it is safe to do so. However, it is necessary to amend the law so it is clear that there is not, nor has there ever been, an entitlement for parents to spend equal time with their child after separation. Multiple inquiries into the family law system have recognised that the equal shared parental responsibility provisions in combination with the associated requirement for the court to consider certain care time arrangements have been widely misunderstood as creating this right. This bill will address that long-term misunderstanding. Removal of the provisions will ensure that the law more clearly identifies that children’s needs and interests should be the focus.

Parenting arrangements agreed out of court or by consent have been found to cause parties to agree to unsafe arrangements because they believe the law requires them to do so. When parents can safely consult on major long-term issues for their children, the bill will encourage parents to do so and to focus on outcomes that will be in the best interests of the children. The bill clearly explains the orders that will be able to be formulated in relation to parental decision-making on major long-term issues. Although these amendments are significant, it is important to note that they will not limit the court’s power to make orders about parental responsibility or shared time. They will, however, implement a safer and simpler framework for making parenting orders.

Enforcement of child-related orders: Noncompliance with parenting orders is a common issue, causing distress for many families. The Australian Law Reform Commission and the joint select committee both identified challenges with the current law. The bill will simplify the operation of the existing law for enforcing parenting orders, helping parents understand the importance of complying with parenting orders unless there is a reasonable excuse not to do so. It will restructure the current division 13 of part 5 of the WA act into four clearer parts. This restructure will make the WA act simpler to navigate but not significantly change the underlying principles of any existing compliance and enforcement provisions. When there is no reasonable excuse for failing to allow contact between a child and a parent, the courts will still have a range of options for addressing issues of noncompliance with parenting orders. In instances of noncompliance, courts will still be able to vary a parenting order, provide for make-up time for missed visits, compensate parties for expenses related to missed visitations and, in more serious circumstances, impose a fine or imprisonment. The bill will also remove a rarely used option to impose a community service order in cases of contravention.

Definition of “member of the family” and “relative”: The government recognises the significance of family and kinship within this state’s proud Aboriginal and Torres Strait Islander cultures. To be more inclusive of these concepts, the bill will amend the definitions of “member of the family” and “relative” in the WA act to reflect the diversity of meanings these terms have for Aboriginal and Torres Strait Islander peoples.

Independent children’s lawyers: The bill will also take important steps to improve the ability for a child’s view to be considered in family law proceedings. The WA act currently provides for independent children’s lawyers, or ICLs, to be appointed by the court to represent a child’s best interests, particularly in cases that involve abuse, high levels of conflict and complexity. ICLs must form an independent view, based on the evidence available, of what is in the best interests of the child. ICLs are obliged to consider the views of the child if they are expressed and put them fully before the court with their own independent perspective about what arrangements or decisions are in the child’s best interests. Although many ICLs will meet with the child to determine their views as a matter of practice, there is currently no legal obligation to do so unless ordered by a judge.

The bill will introduce amendments to require the ICL to meet with the child and provide the child with an opportunity to express their views, unless the child is aged under five or is unwilling, or exceptional circumstances apply. These circumstances include, but are not limited to, when the meeting would expose the child to the risk of physical or psychological harm that cannot be safely managed or would have a significant adverse effect on the wellbeing of the child. When the ICL has not performed these duties, new provisions will require the court to be satisfied that such exceptional circumstances exist. If the court determines they do not exist, the court must make an order requiring the ICL to meet with the child.

Extract from Hansard [ASSEMBLY — Thursday, 19 September 2024]

p4847b-4851a Mr John Quigley

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Harmful proceedings orders: Many victim–survivors of family violence and their children suffer the effects of continued abuse from their perpetrators through the misuse of legal processes. To address this gap in the current law, the bill will introduce the capacity for the court to restrain a party from repeated litigation by making a harmful proceedings order. The focus of the measure will be the protection of the other party and any children from harm, including the detrimental effect on the other party’s capacity to care for a child. Once this order is in place, any further proposed proceedings will first be assessed by the court to ensure that matters that are vexatious, frivolous or unlikely to be successful are not being heard. There will be no erosion of the principles of procedural fairness; applicants will have the opportunity to make the case for the particular matter they wish to bring before the court.

Overarching purpose of family law practice and procedure: The Australian Law Reform Commission report highlighted the negative impact of prolonged family law proceedings on parents and children. This bill aims to improve case management and procedures by broadening the overarching purpose of family law practice and procedure already contained in the WA act. It will encourage parties to cooperate and negotiate with the child’s best interests in mind. The bill will introduce a duty for parties and their legal representatives to resolve disputes while ensuring family safety, prioritising the child’s welfare and minimising costs. Noncompliance with these duties may result in cost consequences for the parties or their lawyers, who cannot pass these costs onto their clients.

Protecting family law information: The bill will also update the WA act to clarify restrictions on communicating identifiable information arising in family law proceedings. Consistent with the Australian Law Reform Commission report, this measure will assist those within the family law system, including service providers, government agencies, professionals and parties, by providing greater certainty about the circumstances in which identifiable information can be shared. This measure will also ensure that the privacy of those involved in family law matters will continue to be protected. Standards and requirements for family report writers: It is important that courts have the best possible evidence before them when considering what parenting orders to make. Family report writers, or single expert witnesses, conduct interviews, make observations and set out recommendations in a report regarding the arrangements that will best meet the needs of a child. A family report is often the only independent evidence available to assist the court. It is crucial that families, the court and all those involved in the family law system can have confidence that every family report has been prepared by a professional with the skills and knowledge required to undertake this important task. Concerns expressed by stakeholders across successive reports and public inquiries into the family law system about the competency and accountability of family report writers will be addressed by the establishment of a regulatory framework. The bill will establish a power to prescribe standards and requirements for these professionals in regulations.

Family safety risk in family law matters and enhanced information sharing: The disappointing reality is that family violence, child abuse and neglect continue to permeate our community. The significant number of matters referred to child welfare agencies, and the prevalence of family violence and child abuse risk within family law matters, demonstrates a need to ensure that federal, state and territory systems work together when supporting and responding to the children and families accessing them. The importance of a joined-up approach between systems has been examined and highlighted by the many reviews and inquiries into the family law system over the past decade. These inquiries and reports, including the Australian Law Reform Commission report, have been integral to the development of this bill and the implementation of the national strategic framework for information sharing between the family law and family violence and child protection systems. A new framework for court-initiated orders for information sharing: This bill will operationalise key aspects of the national framework, enhancing the sharing of risk information regarding family violence, child abuse and neglect between the courts and child welfare, police and firearms authorities. The current legislative framework facilitating information sharing is limited in the information that can be sought by the courts and provided by those agencies. Expanding the information sharing framework within the WA act will ensure that the court is able to access all relevant family violence, child abuse and neglect information earlier, more quickly and continuously throughout proceedings, providing a holistic picture of the risks to both the children and parties to proceedings. The bill will also introduce new orders for particulars and for the production of documents or information, which will support early information being provided to the courts and broaden the scope of information able to be sought.

Admission of information into evidence: A core tenet of the bill is balancing the principles of natural justice and procedural fairness against the potential risks associated with the disclosure of sensitive personal information. The bill will require that the courts admit into evidence particulars, documents or information shared through the enhanced information sharing framework on which they intend to rely.

[Quorum formed.]

Mr J.R. QUIGLEY: In doing so, the court must have regard to specific advice provided by information sharing agencies about any risks associated with the disclosure of information.

Extract from Hansard [ASSEMBLY — Thursday, 19 September 2024]

p4847b-4851a Mr John Quigley

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Safeguarding sensitive information—exclusions: The broader scope of this new information sharing framework necessitates consideration of protected material and the inclusion of safeguards on the sharing of all family safety information. This bill will introduce protections when the disclosure of documents or information to be shared would breach legal privilege, prejudice legal proceedings, contravene a court order, endanger life or be contrary to the public interest. The bill will allow for restricted disclosure in cases in which non-disclosure poses a greater risk than disclosure and requires communication of the additional risk associated with the disclosure of information. The bill will mandate that information sharing agencies and courts follow prescribed safeguards for handling sensitive information, with ongoing updates to the regulations to reflect best practices.

Information sharing agencies: Amendments to the regulations will additionally prescribe a broader set of information sharing agencies and will include agencies responsible for child welfare, the police and firearms authorities. The express inclusion of firearms authorities is the single biggest change to the list of prescribed agencies. This change is to support the court in understanding the holistic picture of family violence risk facing families and children.

Catch-up amendments: In addition to mirroring the commonwealth’s 2023 reform package, this bill will consolidate a number of earlier commonwealth amendments introduced over the last decade during both Liberal and Labor terms of government that have not yet been implemented in Western Australia. In particular, these catch-up amendments include expanded search and entry powers for making arrests under the Western Australian act and provisions for warrants issued under the Western Australian act and for new offences. The new offences will fill a gap under the existing law under which it is an offence to remove a child from Australia without consent when a parenting order is in force or pending, but it is not an offence if a person retains a child beyond the expiry of an order or consent.

Western Australian departures from commonwealth legislation: Although the primary purpose of this bill is to mirror commonwealth amendments, certain departures were required to appropriately recognise WA’s unique local circumstances and practices. These departures do not represent significant differences in policy or substantive law but rather reflect the absence of local WA equivalents to commonwealth legislation referred to in the commonwealth act. The only exception to this is the definition of “final parenting order” inserted by the bill, which is broadened to include interim or interlocutory orders. This amendment was made in response to local case law and stakeholder feedback and is specific to WA. Conclusion: I note that this is the third family court amendment bill introduced by this government, and I have replicated the instructive approach to consultation that was undertaken for those earlier bills when developing this bill. The government has conducted significant and genuine consultation with stakeholders, including the Family Law Practitioners’ Association of Western Australia and the family law section of the Law Council of Australia. I urge members opposite to recognise the government’s efforts in this area to ensure comprehensive consultation. Keeping children and families safe is at the heart of the family law system. These reforms have helped ensure that the family law system can deliver on this responsibility. They have made the family law system safer and simpler and provided clarity for the community. They have also ensured that the best interests of the child is the central focus of the family law system. However, until this bill is passed, these reforms will be available only to married couples and their children. It is essential that we remedy this situation without delay and ensure that de facto couples and their children also have access to these important reforms and, most importantly, children of de facto parents are put on equal footing with the children of married parents so that the best interests of the child is the central focus of the family law system for all children in Western Australia. The system must be safe, simple to use, accessible and deliver justice and fairness for all families accessing it, and this bill will achieve just that. I commend the bill to the house. Debate adjourned, on motion by Ms M.J. Davies.