House debates

Monday, 26 October 2020


Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020

11:03 am

Photo of Chris HayesChris Hayes (Fowler, Australian Labor Party) Share this | | Hansard source

'I've spent the last two years stuck in the Federal Circuit Court trying to protect myself and my children from the vileness perpetuated against us by my former husband. I have directly experienced the incompetence of the court due to the focus on the presumption of joint parental rights. It keeps overruling without reviewing any evidence of family violence orders that have been made by the Magistrates Court and have been put in place to help our safety.' They're the words of Carissa Vita, a domestic violence survivor. I think she succinctly puts in perspective the inadequacies of the current family law framework. This issue is one at the forefront of Women's Legal Services Australia, which notes that up to 85 per cent of Family Court matters involve domestic violence and goes on to say the presumption of equal shared parental responsibility shifts the focus away from child safety, placing children at risk from further abuse. I'd like to thank the member for Moreton for his bill and his continued advocacy in this space.

Earlier this year our nation was rocked to the core by the tragic and senseless murder of Hannah Clarke and her three children. Before Hannah Clarke's murder, the Women's Legal Service teamed up with Rosie Batty to establish the Safety First in Family Law plan. One of the first initiatives in the five-step program was removing the presumption of equally shared parental responsibility, as found in section 61DA of the Family Law Act. This campaign was started in October last year, with the call for action reignited in the immediate aftermath of the tragic death of Hannah Clarke and the children. Unfortunately, it's now been eight months since the tragedy and the call to action remains that—simply the call—as there has been a failed commitment to reform the family law system, so that it is safer for women and children.

The presumption of equal shared parental responsibility is often misinterpreted by the community and practitioners, I might add, as equal time—as misconception that is harmful to women and children. This misconception often plays a large influence in parents who are negotiating consent agreements. Women who experience family violence and who cannot access or afford properly legal representation are often persuaded to believe that equal sharing is the only option under the law. This misconception can further give an abusive partner the incentive to litigate a parenting dispute. This often has the effect of increasing the litigation costs and time, while perpetuating further abuse.

While there are two exceptions to the equal shared parental responsibility under the Family Law Act covering abuse and family violence, these exceptions have been less than effective in real practice. Shorna Moore, Director of Policy at the Federation of Community Legal Centres Victoria, highlights this when she says:

In too many cases children are being forced to maintain a relationship with a violent parent, due to the presumption of shared responsibility.

This view is also reinforced by the research conducted by the Australian Institute of Family Studies in 2010, which found that, where family violence and child abuse have been alleged, 'more than 75 per cent of cases resulted in orders for equal shared parental responsibility'; however, where the allegation is only in respect of family violence, 'almost 80 per cent' of cases result in equal shared parental responsibility.

It is clear that the current framework is not working effectively and is only likely to worsen, in my opinion, if the Family Court is merged with the Federal Circuit Court. We owe it to Hannah Clarke and her children and the countless other women and their children who have been murdered or forced to endure a terrible ordeal at the hands of abusive partners to change this system. We must always act to ensure the best interest of the child is the paramount consideration in these circumstances. I quote the words of Laura Bos, Executive Chair of the Small Steps 4 Hannah Foundation:

What we have seen with Hannah Clarke and her babies is that 'gaming' the custody system is one nobody wins, and in the worst possible way.

11:08 am

Photo of Bridget ArcherBridget Archer (Bass, Liberal Party) Share this | | Hansard source

Some of the earliest meetings I had after my election to the seat of Bass last year were with family law experts and practitioners about their concerns with a range of issue, including the safety of the Family Court premises in Launceston—an issue which I'm pleased to say the Attorney-General has worked with me to resolve. From those discussions and from the countless discussions with constituents caught up in the family law system, I have concerns that the system is not working as intended across a wide range of areas. Not least, there can be confusion and misunderstanding of the legislation and how it is applied, leading to unnecessary distress for those engaged in the system and not serving anyone particularly well.

What we're here to discuss today is one section of the legislation that has been cited as problematic. Section 61DA provides for a presumption of equal shared parental responsibility when making parenting orders. Although the presumption in section 61DA does not apply when there has been family violence or child abuse, it is evidently clear, from consultations with experts in this area and from what I have learned from those who have gone through the system, that this exception is not always easily applied and there are, of course, wider considerations about the best interests of children in particular.

In preparation for speaking today, I sought the opinion, amongst others, of Women's Legal Service Tasmania, who daily are negotiating the adequacy of the law in protecting children and have concerns that the equal shared parenting presumption is inconsistent with the United Nations Convention on the Rights of the Child. These international law protections include the right of the child to be heard in all matters and decisions affecting them, the right of the child to have their best interests assessed based on their own needs, and the right of the child to have their legal rights respected. Yvette from Women's Legal Service Tasmania tells me: 'We fail to prioritise the child's needs above the rights of parents when we talk about equal shared parenting rights. The very term insinuates that the rights of parents override the rights of the child. This is a very traditional and old-fashioned view of being a parent and belongs in the era when children were seen and not heard. This does not accord with contemporary best practice. Often the system and the courts, in particular, fail to ask children what they want to happen. Blindly applying any principle like ESP is dangerous. It fails to take into account the personal attributes of each and every child. All people and children are unique and have their own needs. This requires an individual assessment particular to each and every child before the court, free from the application of the imposition of the rights of others and free from the imposition of the will of other parties, including either parent.'

The Family Law Practitioners Association of Tasmania stopped short of recommending repeal but agrees that there needs to be further clarity around these sections, which I understand, from my discussions with the Attorney-General, the government is open to exploring. So often we are failing those we need to protect the most. Sadly, these sections of the act are just one piece of a complex issue with a lot of moving parts. How do we enable families to separate in the easiest, most equitable and least stressful way for all parties, especially children? More broadly, how do we create true social, economic and cultural change that finally moves the dial on family violence? I am not yet convinced that repealing this one section of the legislation will fix the challenging issues in this area or is necessarily the best approach, and I am very mindful that it could have perverse outcomes. We need wider structural, social and cultural reform, and this cannot be viewed in isolation. I understand, and I share, the member for Moreton's passion to see change, and I note that he and I are both currently engaged in separate inquiries into both family law and domestic, family and sexual violence. It is my belief that the outcomes of those inquiries should inform a way forward, and I don't believe it would be wise to pre-empt their recommendations with a single proposed change. But this issue is one of those that has been raised often, and we should remain open minded about it.

There are a great deal of divergent views on what is a highly emotive issue, and I thank those on all sides of this discussion who have reached out to share their experiences with me. I believe more could be done to assist and educate people in negotiating the family law system, and I do think it is important to be able to discuss these matters openly in this place and to find the common ground and be constructive. There should be bipartisanship in these matters in the best interests of all Australians—particularly our children. I look forward to continuing to discuss these issues and to work together for a better future for Australian families.

11:13 am

Photo of Sharon ClaydonSharon Claydon (Newcastle, Australian Labor Party) Share this | | Hansard source

I'm very pleased to rise in support of this private member's bill, the Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020. I'd like to thank my colleague, the member for Moreton, who joins us in the chamber today, for tabling this bill, and for his longstanding advocacy in this area.

This bill would remove the presumption of equal shared parental responsibility from the Family Law Act, ensuring that children's interests are given priority and placed at the very centre of family law custody decisions. When I asked the Law Council of Australia, during the recent public hearing of an inquiry into family, domestic and sexual violence, for their priority reforms, they didn't hesitate to name this as their No.1 priority for law reform. The view was backed in by a number of witnesses, including frontline organisations who are working every day to combat the scourge of family and domestic violence. One woman is killed in Australia by a current or former partner every single week. Already in 2020, 40 women have been killed by violence. We know that the postseparation period is one of the most dangerous, not just for women facing domestic violence but also for their children.

In 2006 the presumption of equal shared parental responsibility in parenting orders was first introduced in amendments to the Family Law Act. Regretfully, it has been causing great confusion and damaging custody decisions ever since. In 2017 I was Deputy Chair of the House Social Policy and Legal Affairs Committee inquiry into a better family law system to support and protect those affected by family violence. Evidence came before us then, in 2017, that there were great inadequacies in how the current presumption of equal shared parenting is operating. Even though there are exemptions available for families experiencing violence, these exemptions are very rarely exercised. Indeed, there was substantial evidence to suggest that the presumption was, in fact, contributing to inappropriate, and sometimes damaging and outright dangerous, postseparation parental arrangements. When the Australian Institute of Family Studies looked into this they found that, even where both family violence and child abuse had been alleged in a case before the court, over 75 per cent of those cases led to orders for equal shared parental responsibility, either by a judge or by consenting parties. This cannot possibly be in the best interests of the child, which is why the committee then, three years ago, recommended the removal of this legal presumption.

There are too many cases where parenting orders made under the presumption of equal shared parental responsibility place children in the custody of abusing parents. When you consider that half of the matters before the Family Court of Australia and 70 per cent of those before the Federal Circuit Court of Australia involve allegations of family violence, this is no small matter. But it is not just about formal court decisions; the principle also sets a precedent for all decisions that are negotiated between the parties outside of the courts.

Importantly, this bill has widespread support of community and legal groups who have direct experience in the operations of the family law system. Amongst the most prominent has been the Safety First in Family Law campaign that Women's Legal Services Australia launched with Rosie Batty. This campaign has secured the support of more than 90 organisations. So many of the things we know we must do in order to drive down the scourge of domestic violence are going to be resource intensive and expensive—we need adequate funding for frontline services so that no women seeking advice and support are unable to find it and we need to properly fund emergency and longer term housing options so no women and children fleeing violence are left with nowhere to go—but changing the presumption of equal shared parental responsibility costs nothing as a budget line item and yet has the potential to prevent so much damage.

If we're going to drive down the rates of domestic violence, we must place the safety of children at the very centre of our family law system. This important change has widespread support. Despite this, it will go nowhere in this place without bipartisan support. That's why I sincerely thank the member for Bass for her public support and her contribution to this debate today. I urge all government members and those colleagues in this place of good heart and good conscience to support this bill. You know it's the right thing to do. Let's not wait for more women and children to die before we act. We can and must do better than that.

11:18 am

Photo of Anne AlyAnne Aly (Cowan, Australian Labor Party) Share this | | Hansard source

I would also like to add my voice in thanking the member for Moreton for tabling the Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020. This very important bill removes the presumption of equal shared parental responsibility. As the member for Newcastle explained, this provision in the Family Law Act was first introduced in 2016. We've heard evidence of the damaging aspects of this, supported by empirical evidence, research and a number of inquiries conducted by the parliament into the family law system. There have been so many inquiries, but no change, no real reform, has been made to the family law system. The current family law inquiry has heard further evidence from witnesses who have had experience with the Family Court and particularly from those who have been impacted by the provision of equal shared parental responsibility in the current Family Law Act. As the member for Newcastle mentioned, the bill has widespread support among practitioners in family law, among people who provide services in domestic and family violence and, indeed, among the public as well.

I think I have spoken before about my own experiences with domestic violence and with the family law system. That was many, many years ago. Sitting on the current family law inquiry, I am astounded at the fact that, 20 to 30 years on, the substantive issues that I experienced all those years ago with the system persist. There has been no real structural reform within our family law system, particularly to address issues of family and domestic violence. The provision for equal shared parental responsibility, as members before me have rightly pointed out, does not work in the best interests of the child. We have example after example after example where this provision has placed children in harm's way, with a partner or a parent who is violent or who has perpetrated acts of violence and abuse towards their partner. The provision is also used by parties in a family law dispute as a weapon against each other—very simply, that's what it's used for. We already have an adversarial family law system; we already have an adversarial law system. Adding further measures to the Family Law Act that enable parties in a family law dispute of all things, where emotions are high, where tensions are high and where people come to the system feeling broken and defeated—it only serves to create more of an adversarial system. That can never be in the best interests of the child.

In approaching reforms to family law, the interests of the child must be foremost in our minds. Legal experts, service providers, those who are at the coalface and even those who have experienced the family law system agree on this point—that the children must always be at the fore of our minds. I can see no logical reason why a presumption of equal shared parental responsibility puts the best interests of the child first; I can see no reason why that happens. In fact, it is counterproductive and detrimental in cases of family and domestic violence.

As the member for Newcastle pointed out, the number of women and children killed by domestic violence in Australia is staggering. We are at crisis point in this country. We should, as members of parliament, be doing everything that we possibly can here to address this scourge within our society. Removing the presumption of equal shared parental responsibility would go some way to doing that, because it would not only put the best interests of the child first but also address those substantive structural measures that currently exist within the Family Law Act that allow it to continue.

Photo of Ross VastaRoss Vasta (Bonner, Liberal Party) Share this | | Hansard source

The time allotted for this debate has expired. The debate is adjourned and the resumption of the debate will be made an order of the day for the next sitting.