Senator BRANDIS (1:58 PM) —The 2006 family law reforms, introduced by the previous government under the guidance of the then Attorney-General, Mr Ruddock, introduced the presumption of shared parental responsibility. The operation of that presumption has been recently the subject of misinformed criticism from some sectors. The majority of those criticisms were answered by the Australian Institute of Family Studies’ longitudinal survey and the Family Law Council’s report to the Attorney-General. These reports found that the 2006 reforms worked well and had been well received in the community. In particular, the number of court filings in children’s matters had been reduced by 22 per cent, which has resulted in speedier and more dedicated access for the less tractable and more worrying cases. A reduction of such magnitude in the number of filings is the surest indication that the scheme is working in an improved manner.

The family dispute resolution process was very highly rated by its users. A substantial majority of parents with shared care reported that the arrangements worked well for them, and for their children. The coalition is very proud of the shared parenting regime and—although we allow for the possibility that, like any comprehensive law reform, it is capable of being improved at the margins—we will fight strongly to defend it if, as has been foreshadowed by the government, it comes under attack in future legislation.

The Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010 is not such an attack. It is an uncontroversial bill which arises from an issue which has arisen within the family law system—that is, the issue of reports of cases in which mothers were allegedly being confined in remote communities by orders requiring equal parenting time with fathers. The coalition’s view was that the making of such orders arose from a misinterpretation of the reforms.

In March, the High Court handed down its decision in a case called MRR v GR, holding that court orders for shared time must be in the best interests of the child and reasonably practicable. The court held that restricting a mother to a certain location which denied her employment opportunities and caused her distress was neither in the best interests of the child nor reasonably practicable. We agree. The view of the Attorney-General’s Department is that the decision casts doubt on the validity of certain parenting orders made pursuant to the reforms—though not, obviously, the parenting order which was the subject of that case, which was disposed of in the appeal. The orders that may be affected are those where the parents have shared equal parental responsibility. The court has not considered certain criteria relating to equal time or, if the case requires, substantial and significant time in accordance with section 65DAA of the Family Law Act.

The bill creates new statutory rights and responsibilities and ensures that these are exercisable and enforceable as if they had been made under the act, while preserving appeal rights against orders affected by the High Court’s decision. Those people with contested parenting orders will be able to commence fresh family law proceedings where the court did not consider the reasonable practicality of the order, without having to demonstrate a material change in the circumstances. The bill also amends the act to permit a court to consider the statutory criteria in section 65DAA(1) and (2)—that is, the best interests of the child and the reasonable practicality of the arrangement—in relation to applications for consent parenting orders, where the parents are to have equal shared parental responsibility. This will allow the courts to give appropriate weight to agreements between parents. The bill does not interfere with the 2006 reforms but seeks only to remove doubts as to the validity of orders made between the commencement of the reforms and the High Court’s decision last March.

The few decisions that confined women to remote communities were a misinterpretation of the provisions, creating misleading perceptions in the community, and resulted in genuine distress and hardship for a small number of parents. The High Court’s decision—and this bill—should put the misinterpretations of the reforms to rest and reinforce the paramountcy of the best interests of the child as the basic principle underlying these provisions of the act, a basic principle in no way impinged upon by the principle of shared parenting. I commend the bill to the Senate.