Monday, 22 February 2021
Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020; Second Reading
The Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020 makes amendments to the Family Law Act, with the purpose of making our legal system safer for women and their children. It implements recommendations from a series of reports into family violence, the 2009 report by the Family Law Council, a 2017 report by the House of Representatives Standing Committee on Social Policy and Legal Affairs and a 2019 report by the Australian Law Reform Commission. These reports offered a collective 106 recommendations. Based on their advice, this bill repeals section 61DA of the act to kill the misconception that equal shared parental responsibility means that children automatically spend equal time with each parent. This is a false expectation and can lead to parents accepting shared custody in unsafe situations because they think they have no other choice. The bill also repeals section 65 DAA of the act, which requires the court to consider, in certain circumstances, the possibility of the child spending equal time or substantial time with each parent.
Obviously, wherever it is possible, children benefit from close and loving relationships with both parents. As parents we know that. In most situations, even after a family has separated, the vast majority of families sort that out amongst themselves. They sort out when the children will be spending time with each parent and they sort out arrangements around child support. In most situations, I think most parents go out of their way to try to resolve these issues collaboratively and in the best interests of children.
But we know, that where domestic violence has already been present in the relationship, this is a period where that violence can intensify, and the family law system can often be weaponised during such times. So that assumption that children will automatically spend equal time with each parent has to be challenged if one parent is violent either to the other parent or to the children in the family. The misconception that children should, by default, spend equal time with both parents dramatically increases the risk of continuing violence where this has been a feature in relationships.
As the member for Moreton said when he introduced this very important bill, these changes won't fix everything wrong in the family law system but they will offer a step in the right direction. This bill was first introduced after the horrific murder of Hannah Clarke and her beautiful children. That terrible anniversary was a year ago just last week. Hannah and her three children, Aaliyah, Laianah and Trey, were killed by her estranged partner in an act of unspeakable violence. The truth is that, for Hannah Clarke, the warning signs were there for years. The abuse of Hannah Clarke was insidious. She said to her friends and her family more than once that, while her husband was not usually physically violent towards her, he controlled every element of her life. He listened to her phone calls, he read her messages and he stalked her on social media.
The culmination of this terror shook us all, but it's terribly sad to say that it has not created lasting change in many respects. It did not produce any of the reforms that were promised it would produce. I don't doubt the sincerity of the words that have been spoken or the outpouring of grief, but, to be really blunt, we don't need words and we don't need grief. What we need is action. This is what frustrates so many of us about domestic violence. We hear these horrific stories of victims of domestic violence, like Hannah Clarke and her three children, like Luke Batty, like Olga Edwards and her two children or the killing of the Davidson family in 2016, or the killing of Tara Costigan here in Canberra in 2015. I would run out of time if I even began to mention all of these horrific murders. They are horrendous and the list is too, too long. We hear these stories again and again and we have a vigil at the front of parliament but, when we are given the chance to make life safer for the victims of this sort of domestic terrorism, we fail them again and again or, worse, we make life less safe by doing something as shameful and destructive as abolishing the Family Court.
The reports and the enquiries are sitting there. There are three cited in this bill. There is also the Victorian royal commission into family violence and Quentin Bryce's task force in Queensland. The work has being done. We just need the will to implement it. This is a good-faith attempt to do so.
I rise to speak in support of this bill. I commend the member for Morton for bringing this forward, because it is designed to make the system safer for children and safer for women. If there were ever a time that this parliament should be acting on it, it is now, and it is in this parliament, right here, right now. When people separate, it's one of the most difficult things that many people go through in their lives. When you separate and you have children, that is additionally so. We have developed in this country a system of laws that are based around, or should be based around, a central principle: in that situation, when there is a separation and you have to decide who is going to look after the child and in what way, you do what's in the best interests of the child. That is what comes first. You make the decisions on the basis of where they're going to be safest and also what's going to promote their welfare the best. That is as it should be. The arrangements that are going to be made will be different for each group of people involved, and that's why we should leave it up to a specialist Family Court, the likes of which the government shamefully abolished during the course of last week. We should leave it up to judges who know this area and have expertise in it to make the decisions, taking into account the situation of the child.
But what has happened in this country is that, after amendments were made to our laws, presumptions have crept in, sometimes wrongly by judges, I would say, but certainly by some parts of the community. From the provisions in the act that talk about a presumption of equal shared responsibility, people end up thinking that means a presumption of equal time and that, if there is a split, the child's time is going to be split 50-50. The problem is that, if you start from that presumption and say, 'This should be the presumption'—and you can bring in factors to rebut it, but that should be the presumption—firstly, you don't get what's in the best interests of the child, because, all of a sudden, that totally becomes a secondary consideration.
It's not only what happens when there has been a split in a family; it also works backwards from there, because, if women are in a relationship where they fear for their safety and they think that one of the consequences of leaving that relationship is that the child is potentially going to end up, by law, spending 50 per cent of the time with someone that they think is an abusive parent, then they're less inclined to leave the relationship and are more inclined to stay in an abusive situation.
In this sitting fortnight, of all sitting fortnights, as we mark the tragic anniversary of the murder of Hannah Clarke, we need to understand that, when women are in situations where they fear for their and their children's safety, the job of the system, including the family law system, should be to facilitate the passage to make their kids safe. They should not have to think, as is often the case, 'If I leave, I might have to go through a family law system. I've heard that the words "equal presumption of shared responsibility" mean 50-50 time. Therefore, I won't be able to have time to look after my kid.' That is what goes through the minds of many women at the moment. That is why the Law Reform Commission, amongst others, have said that this presumption needs to be removed, because it does more harm than good and we need to leave it up to judges who can decide what is in the best interests of the child in every individual situation. It is sometimes said, 'That will result in fathers not having access to their kids,' but the stats don't bear that out. The stats show that the courts, when they are looking at every individual situation, still, in the overwhelming majority of situations, continue to grant access. I commend the member for Morton for bringing this forward, because this bill will make women and children safer.