THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
ABC MELBOURNE MORNINGS
TUESDAY, 28 MARCH 2023
SUBJECTS: Family law reform; Safeguard mechanism.
RAF EPSTEIN: Equal responsibility in family law wasn't supposed to always mean equal time. You don't assume that each parent gets equal time once the divorce begins. John Howard's Government put that equal responsibility into the Family Law Act. That's sometimes been confused or conflated with the concept of equal time. The Albanese Government is bringing in new legislation and the starting point will be what is best for the child. Mark Dreyfus KC is of course, the Federal Attorney-General. He's part of Anthony Albanese's Government. He's also a Melbourne MP. Mark Dreyfus, good morning.
ATTORNEY-GENERAL MARK DREYFUS: Hello, Raf. Great to be with you and in the morning too.
EPSTEIN: Indeed. What's changing and why?
ATTORNEY-GENERAL: This bill will restore the best interests of children as the key guiding principle of the family law system. And an important part of this, as you said in your introduction, is repealing the confusing and often misunderstood presumption about parental responsibility which has taken the focus away from the needs of children.
EPSTEIN: What was wrong with, or in what way did the equal responsibility provision ended up hurting the interests of kids? Can you give us an example?
ATTORNEY-GENERAL: It caused confusion. It led to an unacceptable situation where abusive partners have a false belief that they have a right to equal time against the wishes of the other parent and their children. It happens inside and outside the court as parents negotiate parenting arrangements and it's caused untold harm to children. This bill will make it clear again that the best interests of children are paramount.
EPSTEIN: I'm just trying to clarify what impact it might have - and tell me if I've got this wrong - the equal responsibility provision in the law meant that people entered into informal agreements saying, you get the kids half the week, I get the kids half the week, and that set up a de facto position that it was difficult for the court to unwind? I think that's the problem you're trying to fix? I just wonder if a lot of the problems are outside of the courtroom? How does that new law fix the issue?
ATTORNEY-GENERAL: The law matters, because that's what provides the guide to everybody operating in the family law system. You're quite right to observe that most separations don't end up in the court system. Overwhelmingly, people participating in family law disputes or family law proceedings never get before a judge and not even before a registrar, they resolve it. For those disputes that do end up in a court, the experience can be more traumatic than it needs to be and that can have a significant impact on children. But the Family Law Act is the guide. It's what everyone refers to as the guidelines for their dispute and how their dispute is to be resolved and that's why removing this presumption about parental responsibility will get this back on in straighter lines.
EPSTEIN: So, give me an idea of how you're trying to guide people. As you said, most people don't end up in court but the law is the template. I think you've got six best interest factors that the courts will consider. Can you take me through some of them? Just explain what they are and how they might work?
ATTORNEY-GENERAL: Yes, the court is going to determine what's in the child's best interests and so these are the factors that are going to be set out in the Family Law Act by looking first of all at what arrangements would promote the safety, which includes safety from family violence or other harm of the child, and safety for each person who has care of the child. It will include referring to any views expressed by the child, it'll include referring to the developmental, psychological, emotional and cultural needs of the child. It'll include referring to the capacity of each potential carer or someone with parental responsibility. It'll include having to think about the benefit to the child of being able to have a relationship with the child's parents and it'll include anything else that's relevant to the particular circumstances of the child. Courts can still order equal shared parental responsibility where it's in a child's best interests, I need to make that clear. All parents have parental responsibility for their children, unless in what are very rare instances, the court orders otherwise.
EPSTEIN: How does someone access the courts though, if they've got no money? I mean, the people most at risk of entering into an agreement that will be unsafe, are the people with the least resources. There would be women today fleeing domestic violence who can't get the legal help they need. That's a burden as well, isn't it?
ATTORNEY-GENERAL: Access to Justice remains a problem in our country. There is what we refer to as unmet legal need, where people who need a lawyer can't get access to a lawyer. But that's why the Commonwealth funds legal assistance service.
EPSTEIN: Is there going to be more money in the Budget Attorney-General?
ATTORNEY-GENERAL: We need to have a safe, accessible and fair family law system. That needs access to lawyers. That's why the Commonwealth does fund state and territory Legal Aid Commissions to provide assistance in family law matters and we're going to continue to look at the level of assistance that we provide. Right now, this year, there is a review taking place of the National Legal Assistance Partnership, which is the cooperative arrangement between the Commonwealth and the states.
EPSTEIN: Surely that review is going to call for more money isn't it? All the reviews do. Isn't that obvious?
ATTORNEY-GENERAL: We're in the middle of a five year National Legal Assistance Partnership, the agreement the Commonwealth has with the states and territories. There will be a review midway through and this is the year for the review. And you may be right, Raf, that one of the key conclusions of the review is going to be that there is a high level of unmet legal need and more assistance is required. I'm going to await the result of that review.
EPSTEIN: Just before I let you go, I appreciate talking to us about, like it is a big change for Family Law Act to be changed. That is big and I want to hear from people on the phone if they think it might benefit them. But you're a part of a Labor Government for the first time we actually have a law that will significantly change the way we limit emissions from our biggest emitters. People might have heard of the Safeguard Mechanisms. Your government reached a deal with the Greens yesterday, did they help make it stronger? Did those negotiations with the Greens strengthen your legislation?
ATTORNEY-GENERAL: I'll leave it for Chris Bowen to comment in detail, but I will say this, this is an election commitment and we are now, as a nation, one step closer to achieving Net Zero by 2050. We've secured the Parliamentary support that we need for the Safeguard Mechanism reforms. Sadly, the Liberal Party dealt themselves out completely by voting against what was their policy. That's one of the more astounding features of this wrangle over the last several months. But I'm really pleased that we are one step closer to achieving Net Zero by 2050.
EPSTEIN: You have been a minister on these sorts of policies.
ATTORNEY-GENERAL: I was, good memory Raf.
EPSTEIN: You understand what it means for there to be a hard cap on emissions. There's an actual limit. You can't just buy credits and buy your way out of the problem. That's because of negotiations with the Greens, so I'll ask again. Did the Greens strengthen your legislation?
ATTORNEY-GENERAL: We are one step closer to achieving Net Zero by 2050.
EPSTEIN: Thanks for your time.
ATTORNEY-GENERAL: Thanks very much Raf.
EPSTEIN: Mark Dreyfus KC is the Federal Attorney-General. He's also, if you live in the electorate of Isaacs, he is your local Labor MP.