Monday, 22 March 2021
Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020; Second Reading
This is a vexed issue. The greatest amount of traffic in my office is pertinent to family law. I suppose I come to this debate with a slightly different perspective, and that is perspective predominantly, but not exclusively, of men who can't get access to their children and how this absolutely tears them to pieces. I believe it comes from a range of areas. The court doesn't have a presumption of equal share, it has a consideration of equal share; and a consideration of equal share in many instances, from what I have seen, works against the male partner. One marriage in three, unfortunately and tragically, falls apart. Of course many of those marriages have children; and where this is most prescient is with young children. The last thing anybody wants is that our children be used as weapons in the dissolution of relationships. But quite often, unfortunately, that becomes the case: where the vitriol of settlement comes into play, access to the children is used as a mechanism to hurt one partner or the other. And this is something that we have to fix up, because it is not the child's fault.
Everybody in Australia, unless there is something demented about them, was completely and utterly devastated by the issues pertinent to Hannah Clarke. What we had there was obviously a disgusting criminal act. But, as hard as it is to say it, the vast majority of men who are trying to get access to children are not disgusting criminals; they are people dealing with a situation that is tearing them apart. I will relay one of the discussions that I've had recently where the guy said, 'I'm not an alcoholic. I'm a hard worker. I've never been violent. I've never committed a crime. But every time I try to get access to my child it's stymied. The process is such that I always feel my former partner has all the cards. Whether I turn up to pick them up and they're not available that week, or whether we're trying to negotiate without offending the children, without having an argument in front of the children'—which is the last thing he wants. He finds this process is beyond his capacity.
The constituency which I suppose I come into this chamber to represent—as you know I talk about the 'weatherboard and iron'—are the poorer guys, because they don't have the money to go through the court system and properly represent themselves. So what we have is the clumsiness of self-litigation. As I always say, a person who self-represents has a fool as their client. The judge is not there to advise. The judge is there to judge. And this means that their position is even further diminished.
I'll go on to other mechanisms which are used from time to time. I'm not saying that this is always the case but from time to time they're used. I've dealt with this in my office—such as the issue of AVOs. There are times when AVOs are absolutely an essential requirement—the person is violent. But sometimes they are used as a mechanism to create further isolation from the children. For an AVO I need to say, 'I feel scared by this person' and that's a very hard thing for the police not to prove. It's how you feel. From time to time, not exclusively, I have also seen that.
The reason I say this in closing is I bet you it's the same case for so many offices. This issue is so pressing that it comes up day after day. I suppose it brings forward a lot of work that you, therefore, have to do and try to resolve. In offices we're not judges. We're certainly not lawyers. We're not solicitors. Yet you feel obliged to do what you can to try and assist these people. So I felt it was incumbent upon me to speak on this matter to possibly give another side of the story.